UNIVERSITY OF CALIFORNIA LOS ANGELES ^ SCHOOL OF LAW LIBRARY i i^ A TREATISE LAW OF HOMICIDE: INCLUDING A COMPLETE HISTORY OF THE PROCEEDINGS IN FINDING AND TRYING AN INDICTMENT THEREFOR; TOGETHER WITH A CHAPTER ON DEFENCES TO HOMICIDE. BY JAMES M. KERR, Author of "Business Corporations," etc. NEW YORK AND ALBANY: BANKS & BKOTHEES, LAW PUBLISHERS. 1891. Copyright, 1891, By banks & BROTHERS. ?^ TO WALDO G. MORSE Of the New York Bar, This Work Is Respectfully Dedicated By the Author. ^^rr.^ r»r\ PEEFACE. TT has been the object of the aiithor to give the busy prac- -^ titioner a clear and concise statement of the law of homicide as it exists in this country, together with a history of a homicide case, in the order of proceeding, from the arrest of the accused, or the finding of the indictment. The method of treatment has been to give a concise statement of the law, with illustrations from the more important cases, and citing copiously authorities from the various states, England, and Canada. The purpose being to make this treatise a convenient manual wherein the busy lawyer will be able to find a discussion of at least the most of the questions likely to be raised in the course of the trial of a homi- cide case, a special effort has been put forth to make an exhaus- tive collection of the authorities, with the date of each decision affixed thereto. That there should be errors of omission and commission is to be expected, but great pains have been taken to guard against both, and it is hoped that they may be found to have been reduced to the minimum. In the interest of those who may have occasion to use this treatise the author has put in a reference to the various con- current series of selected reports and reporters, wherein the cases cited are to be found re-reported, and one or more of which series of reporters or selected reports is kept up in almost every private library in the country. These double citations are to the Ameri- can Decisions ; American Reports ; American State Reports ; the Lawyers' edition of the United States Reports ; the American Criminal Law Reports ; Green's Criminal Law Reports ; the Criminal Law Magazine ; Lawson's Criminal Defences ; Moak's English Reports ; the English Common LaAv Reports ; the various reporters of the Wests' National Reporter System; the V VI PREFACE. Lawyers' Keports Annotated ; the American Law Register ; the Albany Law Journal ; the Central Law Journal ; &c.^ Thi.s was clone at no small outlay, of both time and money, in order to relieve the busy lawyer from the labor and vexation of search- ing through his reporters and reports to ascertain whether a case cited is to be found therein. It is thought that this double citation will be assistful to the profession and meet with their approval. To those who may think the double citations are a waste of both time and space, the author would suggest that, in his humble opinion, it is better to err on the side of fulness than on that of brevity, as may be said of those who cite from the current reporters of the Wests' system by simply giving the title of the case, the name of the court rendering the decision, and the date on which the decision was handed down, leaving the busy lawyer, who wishes to refer to the case, to wade at random through his reporters. For the sake of facilitating reference, the authorities are arranged by states in alphabetical order, and the latest decision in each state given first ; the federal authorities follow the states, the reports of the Supreme Court being given first of the federal cases, and then the district and circuit court reports, arranged alphabetically by the name of the reporter, ending with the Federal Reporter. The English and Canadian cases follow the federal, and the text-books, where any are cited, are the last in the foot-note where it is unbroken by a "see" or a "compare." The index is made very full in order, if possible, to enable the searcher to come at once to the point desired. To facilitate reference the text is broken' into short })aragraphs, which are pro- vided with appropi'iate head-liucs in bold-faced type. The refer- ences, however, both in the table of cases and the index, are to the pages and not to the sections, wliilc in tlie table of contents and the analysis at the head of each chapter the references are to the sections only. Neither time nor pains have been spared 1 No reference is made to the New York State Reporter, a series of sev- eral volumes and some pretensions, for the reason that the publislier did not see fit to contril)Utf the u.se of a set to be consulted while making tlie dupli- cate references. PREFACE. Vii to make what was thought to be a book assistful to the pro- fession, and afford a convenient key to the ma^s of cases on the topics treated of. If the object soiight has been attained, that is sufficient justification for a new book on this branch of the criminal laAv. ^.r-T^r, JAMES M. KERR. Boston, Dec. 15, 1890. TABLE OF COl^^TENTS. CHAPTER I. WHAT CONSTITUTES HOMICIDE. SECTION PAGE 1. Definition 1 2. Causing cleatli incUrectlj' 2 3. Homicide by substituted agent 4 4. Substituting poison for medicine 5 5. Infanticide 6 6. Same — Stating sex of cliild 7 CHAPTER II. KINDS OF HOMICIDE. 7. Classes of homicide ^ 8. Justifiable liomicide S 9. Homicide in tlie execution of a criminal 10. Homicide by an ofticer resisted in the execution of his duty 10 11. Homicide to prevent a crime 12 12. Same — In preventing misdemeanor 13 13. Same — In protection of property, etc 14 14. Homicide while protecting a federal justice 15 15. Same — Release on habeas corpus 15 16. Homicide from necessity or compulsion 16 17. Same — In case of shipwreck 18 18. Same — Homicide to secure food 18 19. Homicide committed in war 19 20. Excusable homicide 21 21. Same — Distinction between justifiable and excusable homicide 22 22. Homicide in self-defence 23 23. Homicide by misadventure 24 24. Same — Act must be lawful 24 25. Same — Following ordinary occupations 25 26. Same— Administering medicine 26 27. Same — Homicide on correction 27 28. Felonious homicide 28 29. Same — Intent as an element 29 ix X TABLE OF CONTENTS. CHAPTER III. CRIMINAL HOMICIDE. SECTION PA6B 30. What constitutes criminal homicide 33 31. Other assaults on deceased — Eflect 35 32. Infliction of mortal wound 36 :W. Death accelerated bj' accused 37 34. Proper medical treatment 37 35. Same — Failure to procure medical aid 38 36. Same — Erroneous medical treatment 38 37. Same — Death from subsequently contracted disease 39 38. Liability for killing by third person — Kioters 39 39. Death by repeated acts 40 40. Death caused through irresponsible agent — Children and idiots 42 41. Same — Letting loose savage animal 42 42. Same — Producing conviction by perjury 43 43. Continuing offences 44 44. Same — Indictment 45 45. Same — Jurisdiction 46 46. Wound inflicted on high seas 48 CHAPTER IV. SUICIDE. 47. Definition 49 48. Who may commit suicide 50 49. Suicide as evidence of insanity 51 50. Same — Lucid interval 52 51. Aiding and abetting 52 52. Accidental killing 55 53. Accessories before the fact 56 54. Same — Absence when act committed — Eff"ect on criminality. . . 57 55. Abortion — Killing in producing 57 56. Same — Causing pregnant woman to take poison 58 57. Same — Supplying drugs to pregnant woman without causing her to take them 59 58. Attempts to commit suicide CO 59. Consent of deceased 60 60. Punishment for suicide 61 CHAPTER V. Mri:i)i"u. C,\. Definition 65 62. Premeditated design 66 63. In federal jurisdiction — Wliat killing is murder 66 64. In tlie king's peace 66 TABLE OF CONTENTS. XI PAGK SECTION 65. Killing with specific malicious intent — Requisite of malice — Nature of tlie intent 67 66. Same — Express malice 68 67. Same — Wilful and negligent ouiission of duty 68 68. Deliberation and cooling time 69 69. Same — ^ufticiency of time — Question for jury 70 70. Same — Scope and object of inquiry 70 71. Same — Adequate cooling cime 71 72. Same — What sutticient deliberation 72 73. Inadequate cooling time "3 74. Same — Passion after intent formed 7.5 75. Same — Pretence of fighting . "5 76. Same — Feigned reconciliation "'J 77. Malice implied by act of killing 76 78. Same — Interfering between combatants 77 79. Same — Antecedent quarrel — Presumption therefrom as to malice ' ^ 80. Same — Anarchists' Case — Manufacture of dynamite bombs. . . 78 81. Same — Rule in Colorado and Louisiana 79 82. Same — From means used — Deadly weapon 80 83. Same — What weapons are deadly 81 84. Same — Words not justify use of deadly Aveapon 83 85. Same — Means calculated to produce death under peculiar cir- cumstances 83 86. Same — By administering poison ^-^ 87. Same — Shown by surrounding circumstances 84 88. Same — Quarrel — Retreat and pursuit 85 89. Same — Prearranged quarrel — Mutual malice 86 90. Same — Renewal of controversy 87 91. Same — Assault by one of the slayers 88 92. Same — Cruel or inhuman treatment 89 93. Same — Revenge for assault upon defendant's son 89 94. Same — Killing wife's paramour ^^ 95. Same — Mutual combat '"^ 96. Same — Killing after proposal of combat 91 97. Same — Malice presumed to continue — Provocation 1>1 98. Killing ofiicer in discharge of duty 92 99. Killing one person in attempt to kill another 94 100. Homicide while committing felony 9.> 101. Homicide by gross misconduct or negligence -'6 102. Degrees of murder distinguished ''8 103. Same — First degree ^02 104. Same — Illustrations • 1*^8 105. Same — Second degree 1^8 106. Same — Illustrations ^-^ 107. S(ime — Other degrees ^ -■' 108. Principals and accessories — General rules as to principals 125 109. Same — Principal in the first degree 1^' 110. Same — Principals in the second degree l'^8 Xii TABLE OF CONTENTS. SECTION PAGE 111. Same — Conspirators 129 112. Same — The Anarchists' Case 131 113. Same — Persons giving aid or advice 133 1 U. Same — Accessories before the fact 135 115. Same — Accessories after the fact 136 CHAPTER VI. M.VXSLAUGHTKK. 116. Definition 139 117. Distinction between manslaughter and murder — }»Ioral cliar- acter of manslaughter 14:0 118. Kinds of manslaughter 14^1 1 19. Voluntary manslaugliter defined 141 120. Reducing homicide to manslaughter 142 121. Same — Rule in Alabama — First degree 143 122. Same — Rule under federal statutes 143 123. Same — Provocation causing passion — Wliat Icinds of provo- cation sufficient 143 124. Same — Words toward slayer 144 125. Same — Intoxication of deceased 145 126. Same — Rule in Georgia 145 127. Same — Rule in Xew Yorlc 145 128. Same — Cooling time 145 129. Same — Interview sought by defendant 146 130. Same — Words towards female relative 147 131. Same — Words spoken in defendant's absence 148 132. Same — Difficulty begun by defendant 150 133. Same — Banter by deceased 151 134. Same — Wound given by deceased 151 135. Same — Killing in house of deceased 151 130. Same — Strllcing with fist or weapon 151 137. Same — Shooting unarmed adversary — Provocations 152 138. Same — Killing attacl 190. Killing officer dispersing public meeting — The Anarchists' Case 218 191. Homicide because reward offered for death 219 192. Homicide in defence of woman's chastity 219 193. Killing one guilty of adultery with slayer's wife 221 194. Homicide from necessity 222 195. Same — The Mignonette Case 223 xiv TABLE OF CONTENTS. SECTION ^^''^ 196. Homicide from compulsion 225 197. Existence of war 225 198. Homicide by accident and mistake 225 199. Homicide while insane 227 200. Same — Uncontrollable impulse 228 201. Same — Moral insanity 230 202. Voluntary intoxication as a defence 230 203. Same — Irresistible appetite 233 204. Same — Producing temporary insanity 234 205. Same — Shown as aflccting physical capability 23G 20G. Same — Mental att'cction must be permanent 237 207. Same — As aggravating oflence — Illinois doctrine 237 208. Same — Texas doctrine 238 209. Same — When considered 238 210. Same — A fleeting intent and degree of oflence 242 211. Same — Intoxication as a rebuttal of malice 244 212. Same — As disproving criminal intent 246 213. Same — Insanity resulting from intoxication 247 214. Same — rredisposition to insanity from intoxication 249 215. Same — Fixed fi'enzy 249 216. Same — Delirium tremens 250 217. Same — Involuntary intoxication as an excuse for crime 251 218. Same — Somnambulism as a defence 251 CHAPTER VIII. TEVIK -WITHIN AVIIICH PROSECUTION TO BE INSTITUTED. 219. Limitation of prosecution 255 220. Same — Statute must be pleaded 256 221. Same — When statute ceases to run 257 222. In prosecution for murder 257 223. In prosecution for manslaughter 258 CHAPTER IX. JURISDICTIOX. 224. Venue 259 225. Jurisdiction as to place — Of the state courts 259 226. Same — At common law 261 227. Same — Of the federal courts 261 228. Offences commenced in one jurisdiction and completed in another 263 229. Jurisdiction as to the person 263 230. Jurisdiction as to court 264 TABLE OF CONTE>'TS. XV CHAPTER X. PRELIMINARY EXAMINATION. SECTION PAGE 231. Right to preliminary examination 265 232. By whom preliminary examination held 266 233. Securing attendance and examining witnesses 266 234. Effect of finding indictment on right to examination 267 235. Where preliminary examination to be held 267 236. Same — Adjournment of examination 267 237. Same — Reducing testimony to writing 2G8 238. Waiver of preliminary examination 268 239. Warrant of commitment 269 CHAPTER XI. INDICTMENT AND INFORMATION. 240. Necessity for 271 241. Essentials of 271 242. Matters pertaining to the finding of tlie indictment 272 243. The caption 274 244. Charging the offence — General rule 276 245. Same — Charging in two counts — Election 278 246. Same — As at common law 278 247. Same — In the language of the statute 279 248. Same — Averment that the act was unlawful 280 249. Same — In abortion 281 250. Same — Intent — Simple averment of intent to kill 282 251. Same — Wilfully, feloniously, and with malice aforethought ... 283 252. Same — Premeditation and delibei'ation 285 253. Same — Specifying the degree 287 254. Same — Charging killing while committing another offence 288 255. Same — Means aud manner of the homicide — Averment that injury charged caused the death 288 256. .Same — Averment of instrument or means used .■ 289 257. Same — Alleging weapons in defendant's hauds 291 258. Same — Charging killing with gun or pistol • 292 259. Same — Charging killing with bludgeon or stick 293 260. Same — Charging killing by strangulation 293 261. Same — Charging killing by poisoning — Quantity used 294 262. Same — Description of wound 294 263. Time of act causing death 298 264. Time of the death 300 265. Averment of death 301 266. Averring place of the act causing death — Under state statutes 301 267. Same — Under federal statutes 302 268. Averring place of the death 303 Xvi TABLE OF CONTENTS. SECTION PAGE 2G9. Description of deceased — Setting out Christian name — Idem sonans 303 270. Averring defendant's sanity 307 271. Conclusion of indictment 307 272. Cliarging more than one homicide by the same act 308 273. Joinder of counts — Different modes of committing one offence 308 274. Same — Different oflence 309 275. Same — Principals and accessories 310 276. Indictment of accessories and co-conspirators. 312 277. Joint indictment 314 278. Signature and indorsement of the indictment 315 CHAPTER XII. BAIL IX HOMICIDE CASES. 279. Common law doctrine 316 280. American doctrine 317 281. Same — Texas doctrine 319 282. Wlien l^ail refused 319 283. Murder in first degree — Bailable when 320 284. Jurisdiction to admit to bail 321 285. Granting bail after indictment 322 286. Cause for admission to bail — Sickness and disease 322 287. What inquired into 324 288. Proof of guilt — Wlien justifies refusal of bail 324 289. Same — Burden on defendant to show guilt not evident 325 290. Failure of jury to agree 327 291. Bail after conviction 328 292. Granting and refusing bail — Procedure 329 293. Same — Heview 330 CHAPTER XIII. CHANGE OF VENUE. 294. Application for change of venue 331 295. Reasons for change — Local prejudice 331 296. Same — Georgia doctrine 331 297. Affidavits and application — Weight and sufficiency 332 298. Same — Count er-afiidavits 333 299. Filing indictment and transcript on change of venue 334 CHAPTER XIV. COUNSEL. 300. Counsel for prosecution 336 301. Counsel for defence — Common law doctrine 337 TABLE OF CONTENTS. XVll SECTION ' PAGE 302. Same — American doctrine 338 303. Same — Canadian doctrine 338 30-i. Same — Appointment of counsel 338 305. Argument of counsel prosecuting 340 30G. Same — Misconduct in — Improper remarks 341 307. Same — Abusive language — Exciting prejudice 343 308. Same — Misstatement of facts — Assumptions 344 309. Same — Commenting on failure to testify, etc 345 310. Same — Discretion of court in granting new trial 346 311. Argument of counsel defending 347 312. Same — Limiting time of argument 348 CHAPTER XV. ARRAIGNMENT AND PLEA. 313. Necessity and sufficiency 351 314. Same — Re-arraignment 353 315. Waiver of reading indictment on arraignment 353 31G. Withdrawal of plea — Discretion of court 354 317. Same — Statutory provisions • 357 318. Same — Hearing of evidence 357 319. Pleading not guilty — Duty of court 357 320. Same — Nolo contendere 358 321. Pleading guilty — Ascertaining degree — Retroaction of plea. . . 358 322. Pleading former jeopardy 359 323. Same — What is a sufficient plea of 361 CHAPTER XVI. SERVICE OF INDICTMENT. 324. Right to 362 325. Incorrect copy 363 326. Time of service 363 327. Waiver of service 364 CHAPTER XVIL THE TRIAL. 328. Right to speedy trial 365 329. Discharge on failure to try 366 330. Fixing time of trial — Rights of defendant 367 331. Postponement of trial 368 332. Continuance to secure witness 3'^^ 333. Same — When refused '^'^^ 334. Continuance to secure counsel • •• 370 B xviii TABLE OF CONTENTS. CHAPTER XVIII. JOINT DEFENDANTS. SECTION PAGE 335. Separate trial 372 336. Same — Discretion of trial judge 372 337. Wlien demanded 373 338. Determining order of trial 373 339. "Waiver of separate trial 373 340. When put on trial 374 CHAPTER XIX. THE TRIAL — PRESENCE OF THE DEFENDANT. 341. Right to be present 375 342. Same — Forfeiture of right 378 343. Same — Waiver of right 379 344. Same — Temporary absence 280 345. Presence during delivery of testimony 381 34(). Attending on inspection 381 347. Presence during instruction to jury 381 348. Presence when verdict received 382 349. Present on motion for new trial and arrest of judgment 383 350. Presence presumed 384 351. Presence of counsel 384 CHAPTER XX. THE TRIAL — THE JURY. 352. Right to trial by jury 385 353. Waiver of trial by jury 387 354. Drawing, summoning, and empanelling jury 389 355. Qualifications of jurors 391 356. Same — Conviction of infamous crime — PaTdon 391 357. Same — When objection to be taken 392 358. Defendant's list 393 359. Challenge for cause — Implied bias 395 360. Same — Actual bias 395 361. Same — Prejudice against capital punishment ' 397 362. Same — Prejudice against defence of insanity 398 363. Same — Prejudice against " anarchism " 398 36?4. Same — Prejudice against circumstantial evidence 399 365. Same — Right to challenge — Re-opening right 399 366. Peremptory challenges 400 367. Swearing the jury 401 H68. Discliarge of jurors 403 TABLE OF CONTENTS. XIX SECTION . PAGE 369. Separation — During trial 404 370. Same — Permission to visit sick relative 405 371. Same — During meals, etc 40G 372. Same — Separation after retiring 407 373. Misconduct by or relating to the jury during trial 407 374. Same — As to officer in charge 407 375. Same — Holding communication witli outside parties 408 376. Same — Attending church 409 377. Same — Use of liquor by jury 410 378. Same — Discretion of trial judge 411 379. Same — Conduct and words of counsel 412 380. Same — Waiver of irregularities 412 381. Misconduct by or relating to the jury after retiring 412 382. Same — Law-books in jui-y-room 414 383. Same — Examining things not in evidence 414 CHAPTER XXI. EVIDENCK — PIJEMMIXAIIY. 384. Witnesses 416 385. Same — Sepai'ating witnesses 417 386. Same- — Number of witnesses 417 387. Same — Competency of witnesses 418 388. Same — Husband and wife 419 389. Same — Co-defendant where indictment nollied 419 390. Same — Medical experts 419 391. Same — Incriminating testimony 420 392. Determining the competency of evidence 420 393. Order of proof 421 . CHAPTER XXII. EVIDENCE — COMPETENCE. 394. Evidence to prove the corpus delicti 425 395. Threats — By deceased 426 396. Same — Where defendant the aggressor 428 397. Same — Foolhardy threats 429 398. Same— Threats by third person 429 399. Same — Threats of secret societies 430 400. Same — Communicated threats 430 401. Same — Uncommunicated tlireats 431 402. Same — Uncommunicated threats as corroborative evidence 431 403. Same — Premeditation 432 404. Same — Over act 433 405. Acts and conduct of deceased 433 40G. Acts and conduct of accused 434 XX TABLE 07 CONTENTS. SKCTION PAGE 407. Provocation 435 408. Acts inconsistent witli declai-ations 435 409. Same — Declarations before the act causing deatli 43G 410. Same — Declarations of deceased not made in extremis 438 411. Same — Declarations as to slayer 4ol) 412. Same — Dying declarations 440 413. Same — Kansas doctrine ' 444 414. Same — Scope of declaration — Illustrations 44G 4 1."i. Same — Test of admissibility — Belief in impending death 448 4 Hi. Same — Stating a fact or expressing an opinion 450 417. Same — Reducing declaration to writing 452 418. Same — Time of declaration 453 419. Same — Form of 455 420. Evidence, character, disposition, and habits of deceased — Proof by prosecution 456 421. Same — Proof by defence 457 422. Same — Where defendant the agressor 4G0 423. Threats of defendant 461 424. Same — Time of threats 464 425. Acts of defendant — Before the homicide 465 426. Same — Evidence of other crimes 466 427. Same — Acts after the homicide — Conduct and appearance in- dicating mental condition 469 428. Same — Flight or escape 470 429. Declarations of defendant — Before homicide 472 430. Same — Declarations after the homicide — Proof by prosecution 475 431. Same — Proof of by defence 476 432. Same — Declarations of an accomplice 478 433. Confessions .^ 479 434. Same — Knowledge of ettect .* 480 435. Same — To whom made 481 436. Same — Confessions by accomplice 482 437. Physical' superiority of defendant 483 438. Character and disposition of defendant 483 439. Same — Peacef ulness of character 484 440. Same — Evidence of character — Negative evidence 485 441 . Same — Reason for the rule 4S7 442. Same — Defendant's acts of kindness to deceased 489 443. Use of intoxicants 489 444. Somnambulistic condition 490 445. Socialistic, communistic, or anarchistic principles 490 446. Same — Acts, threats, and declarations by confederates and co- conspirators — Before the homicide 490 447. Same — Hevolutionary organizations — Adopting the writings of others 492 448. Acts, threats, and declarations of co-defendant after homicide. . 493 449. Acts, threats, and declarations of tiiird persons before the homicide 494 4.50. Same — After the hon)icide 496 TABLE OF CONTENTS. XXI SECTION PAGE 451. Same — Cries or exclamation of bystanders 497 452. Same — Declarations made in the presence of the accused 498 453. Same — Declarations nuide out of presence of accused 498 454. Previous relations existinff between deceased and defendant — Previous quarreling or ill-feeling — Proof by prosecution. . . . 499 455. Same — Where two jointly indicted 501 456. Same — Proof of by defence 501 457. Same — Showing business and social relations 502 458. Proof as to weapon 503 459. Comparison of handwriting 505 460. Comparison of tracts and footprints 505 461. Same — Compelling defendant to make footprint 506 462. Same — Experiments out of court with footmarl^^s 507 463. Evidence given at former inquiries into the homicide — At coro- ner's inquest 507 464. Same — At preliminary examination 508 465. Same — At former trial 509 466. Same — Defendant's affidavit for continuance 509 467. Legal process being served by deceased when killed 509 468. Proof as to motive — Immunity from prosecution for offence charged 510 469. Same — Proof of guilt of the crime charged 511 470. Same — Prevention of testimony by deceased 513 471. Same — Promotion of plans of secret organizations 514 472. Same — Avarice 515 473. Same — Improper devotion to or criminal intimacy with a female 517 474. Same — Marital infidelity 518 475. Same — Jealousy 519 476.. Same — Revenge 519 477. Proof of insanity 520 478. Same — Excessive use of liquors 522 479. Same — Expert and opinion evidence — Experts 523 480. Same — Skilled workmen 525 481. Same — Experts in insanity cases 525 482. Same — Opinions of non-professional witnesses as to insanity. . 526 483. Same — Non-experts 627 484. Same — Experiments 529 485. Medical and scientific books ;;nd writings 530 486. Hearsay evidence 531 487. Impeaching evidence 532 488. Tilings in evidence 533 489. Aiew of premises by jury 534 490. Presumptions and burden of proof — As to the corpus delicti . . . 535 491. Same — As to malice 535 492. Same — As to insanity 537 XXll TABLE OF COIs'TENTS. CHAPTEK XXIII. EVIDENCE — WEIGHT AND SUFFICIENCY. SECTION PAGB 493. The coi-ptts delicti 539 494. Same — New York rule 541 495. Same — Proving alias dictus 542 496. Proving tlie venue 542 497. Same — Doctrine of reasonable doubt 543 498. Confessions 543 499. Same — Nature and eftect 545 500. Same — Must he free and voluntary 547 501. Same — Inducement to confession — Persons in authority 549 502. Same — Confessions made wliile under arrest 552 503. Same — Confessions made through fear of mob violence 553 504. Same — Confessions procured through artifice and deception. . . 554 505. Same — Confessions to clergymen 554 606. Same — Confessions obtained by questioning 555 507. Same — Confessions during examination 555 508. Same — Confessions inferred when 555 509. Same — The whole confession must be taken together 556 510. Testimony of accomplice 557 511. Proving self-defence 559 512. Proving alibi 559 513. Proving insanity 560 514. Same — Sufficiency of evidence 562 CHAPTER XXIV. EVIDENCE — 1)EFEND.\NT'S GUILT UPON THE WHOLE EVIDENCE. 515. Direct evidence 563 516. Circumstantial evidence 564 517. Same — Possession of stolen property 568 518. Same — Estal)lishing facts by competent evidence 568 519. Doctrine of reasonable doubt 569 520. Same — Proof of material facts charged — Instructions 571 521. Same — The " Anarchist's Case" 572 622. Same — Proving alibi 573 CHAPTER XXV. IN.STRUCTIOXS TO THE JURY. 523. What quostions nnist be submitted by the instructions 575 524. Charging erroneously or insuniiieiitly 575 525. Instructions as to the degree of murder ... 576 526. Instruction as to manslaughter 578 TABLE OF CONTENTS. Xxiii SECTION " ' FAOB 527. Instructions as to excuse or justification 579 528. Instructions as to conipeteuey and weight of evidence 581 529. Instructions as to tlie verdict 581 530. Instructions as to puuisluuent 581 531. Repetition of instruction 582 532. Sufficiency of instructions as to form 582 533. Same — Contradictory and misleading instructions 585 534. Same — Using tigure of speecli 586 635. Same — Instructions as to form of verdict 58G 536. Written instructions 587 537. Instruction as to evidence of accomplice 588 538. Instruction as to reasonable doubt and alibi 588 CHAPTER XXVI. DISAGREEMENT AND RETAIL. 639. Discretion of trial court 589 540. Same — Continuance 589 CHAPTER XXVII. 541. Time and manner of rendition 590 542. Form of verdict — Specifying the degree of guilt 591 543. Same — Variance from indictment — Effect 591 544. Same — Amending form of verdict 591 545. Same — Assessing the punishment 592 546. Same — Constitutionality of statute 592 547. Specifically acquitting of higher or lower degree 592 548. Naming the defendant 593 549. Specifying the court sustained 593 550. Recommendation of mercy 594 551. Errors in spelling and bad grammar 594 552. Same — Idem sonans 595 553. Polling the jury 596 TABLE OF OASES. A. Aaron v. State, 31, 226, 304, 305, 547. Abbott V. People, 457, 459, 400, 401, 462. Abernethy v. Commonwealth, 462. Abranis v. Foshee, 168. Accident Ins. Co. v. Crandal, 52. Achey v. State, 483, 490. Acree, Ex parte, 317. Adams v. People, 48, 87, 95, 96, 127, 160, 201. V. State, 164, 165, 175, 216. V. Utley, 544. Adier v. State, 355, 356. Adwell V. Commonwealth, 441. Agitone v. State, 177. Aiken v. State, 120, 124. Aikin v. State, 119, 393, 394. Ake V. State, 104, 105, 479, 482. Akin V. State, 475. Alexander, Matter of, 329. V. Commonwealth, 409. V. People, 583. V. State, 119, 177, 196, 197, 294, 563, 570. Alford V. Commonwealth, 307, 411, 458, 459. V. State, 158, 217. Alfred v. State, 479, 556. Allen, Ex parte, 317, 319. V. People, 175. V. State, 87, 178, 388, 429, 558, 580, 591. Allison V. State, 143, 372, 373, 442. Allsup V. State, 119. Alston V. State, 462, 555. Amos V. State, 582. Andersen v. State, 228. Anderson, /n re, 67, 269. V. State, 81, 105, 230, 255, 256, 283, 285, 342, 344, 372, 393, 405, 461, 462, 405, 540, 545, 555, 582, 583, 584. Anderson v. Territory, 103. Andrews i'. People, 544. V. State, 376, 382, 383, 542, 543. Angel I'. State, 95. AngtU V. State, 31, 94. Ann r. State, 30, 31, 96, 97, 169. Anon, 54, 169, 304, 316, 320, 351, 404. Anthony t'. State, 32, 104, 116, 118,280. Archer's Case, 322. V. State, 261, 323. Armistead r. State, 17, 173, 207, Armstead v. State, 491, 591. Armstrong v. Armstrong, 546. Arnold v. State, 470. Arto V. State, 178. Atkins V. State, 17, 80, 149, 426, 429, 582. Atkinson v. State, 102. Attorney-General v. Parnther, 538. Austin V. Peoi)le, 548. V. State, 547, 552. Austine v. People, 550, 551. Ayres v. State, 212, 226, 557. B. Babb V. State, 178. Babcock v. People, 401. Backus V. Lebanon, 387. Bailey's Case, 265. V. State, 105, 174, 193, 2.32, 247, 368, 369, 404, 508, 557, 558, 570. Bain r. State, 29, 30, 36, 363. Baker v. State, 173, 201. Balbo V. People, 554. Baldwin r. State, 3, 227, 285, 538, 501. i\ Westenhaver, 317, 329. Ballad v. State, 551. Bang V. State, 176, 193. Banks, Ex parte, 320, 326. V. State, 283, 495. Barber i: State, 244. XXV XXVI TABLE OF CASES. Barcus v. State, 536. Bardeii v. Briscoe, 341. Bare, Ex parte, 326. Barkhamstcd v. Parsons, 42, Barnes v. State, 548. Barnett v. People, 440, 583. Barney's Case, 316, 326. V. People, 401. Baronnet, Ex parte, 319, 321. Barron (■. Baltimore, 366. V. State, 583. Bartholomew v. People, 251. Bartlett v. State, 403. Bass V. State, 266, 274. Bateman v. State, 353. Bates V. State, 404. Batten v. State, 470. Batturs v. Sellers, 556. Bauson r. Offley, 45. Baxter v. State, 402, 403. Beacom, Ex parte, 318. Beal V. State, 47. Beall V. State, 317, 327. Bean v. State, 177, 281, 304, 807. Beasley v. People, 280, 281, 282. V. State, 231, 239, 247, 249. Beauchamp v. State, 80, 83, 275, 334, 483, 484, 533, 583. Beaudien v. State, 583. Beaumont v. State, 384. Beavers v. State, 280, 281, 542, 543. Bechtellieimer v. State, 103, 105, 108, 143. Beers v. State, 536. Beery v. United States, 400, 547, 551. Beets V. State, 133, 139. Bel^ard v. Morse, 329. Bell V. Howard, 393. I'. State, 178, 187, 204. Belram v. State, 85. Beltram v. State, 85. Ben V. State, 363, 440, 447, 456. Benavides v. State, 442, 443. Benedict, v. State, 274, 462. Bennot i'. State, 392. Bennett v. State, 231, 232, 248, 308. Benson v. Offley, 45. Benton v. State, 387, 535. Bergen v. People, 546. Berry v. State, 342, 347, 404, 546. Bessette v. State, 342. Betts I'. Betts, 546. Bijrss r. State, 155, 220, 222. Bilanskey ;•. State, 294,404, 405, 591. Bill 1-. People, 342. Billigheimer v. State, 353, 388. Billings V. Billings, 546. V. State, 352. Binfield v. State, 429. Binns v. State, 103, 104, 105, 440, 499. Bird V. State, 144, 149, 153. Bivens v. State, m, 80, 102, 105. Bizzell V. Booker, 97. Blackburn v. Commonwealth, 544, 545. V. State, 52, 56, 127, 557. Blackman v. State, 331, 332, 346, 391, 396, 528, 582. Blake v. State, 178. Blakeley, Walter of, Will of, 526. Bland v. State, 583, 586. Bledsoe v. Commonwealth, 204. Blimni v. Commonwealth, 231, 235, 239, 243, 245, 250. Bode 1-. State, 178, 194. Bohanan v. State, 118. Bohannon v. Commonwealth, 12, 13, 65, 172, 176, 203, 204, 206, 207, 283, 286, 304, 342. Boles V. State, 583. BoUman, Ex parte, 265. Bonar, Ex parte, 326. Bond V. State, 388, 428, 457, 569. Bonds V. State, 275. Bonnard v. State, 85, 145, 146, 149, 177, 202, 476, 478. Bonner v. State, 275. Boothe V. State, 495, 510. Bostock V. State, 534. Boswell V. Commonwealth, 231, 232, 236, 240, 243, 246, 248, 249, 538. V. State, 229, 2.30, 538, 561, 569. Bouldin v. State, 505. Bovard v. State, 227. Bowden v. Johnson, 556. Bowen v. Pollard, 3-52. V. State, 348, 352, 495, 510. Bower v. State, 556. Bowles V. State, 35, 457. Bowling V. Commonwealth, 558. Boyd V. State, 92, 304, 373, 426, 510, 548, 550. Boyett V. State, 143, 144, 368, .369, 404, 405, 407, 479. Boyle V. State, 76, 80, 84, 118, 436, 449, 499. Bradley v. State, 80, 2-32, 236, 2-39. Bradshaw c. Commonwealth, 496, 497. V. State, 531, 569, 571. Brainard v. Brainard, 546. TABLE OF CASES. XXVll Brakefleld v. State, 442. Branch v. State, 178. Brant v. Fowler, 410. Bratton v. State, ol, 84, 103, 107. Brennan v. I'eople, 11, 128, l-'iO, J3y9. Brewer v. Commonwealth, 401. Bridewell, Ex parte, oil, o20. Brimmingstool v. People, 388. Brister v. State, 127, 128, 312, 314, 334, 480, 545, 547, 549. Bristow's Case, 392. Bristow V. Commonwealth, 08, 302. Bromley v. People, 44. Brooke v. Townsliend, 527. Brooks V. Commonwealth, 95, 90. V. People, 307. V. Perry, 348. V. State, 118, 593. Broome v. Keg, 274. Brothertony. People, 441, 500, 570, 571. Brow V. State, 342. Brown, Ex parte, 142, 144. 17. Anderson, 352. V. Commonwealth, 442, 443, 407, 479, 481, 482, 525, 520, 550, 557, 558, 502. V. People, 537, 547. V. Smith, 120. V. State, 77, 141, 101, 107, 174, 202,240, 243, 311, 371, 375, 370, 384, 388, 441, 530, 537, 540, 581, 582, 593. V. Swineford, 342, 347. Browne v. Smith, 120. V. State, 570. Brownell v. People, 176. Brownlee v. Hewit, 340. Broyles v. State, 141, 550. Brumley v. State, 427. Bruner v. State, 141, 142, 101, 311. Brunet v. State, 458, 475, 470. Bryan, Ex parte, 370. V. State, 294, 297. Bryant, Ex parte, 310, 317, 319, .320, 320. V. State, 300, 440, 454, 455, 542. Brydges, Ex parte, 2. Buchanan v. State, 17. Buckner v. Commonwealth, 310, 311, 312. Buel V. People, 55, 103, 100, 107, 114, 127. Buffalo, Bayou, B. & C. R. Co. v. Fer- ris, 387. Bull V. Commonwealth, 101, 442. BuUincr v. People, .341, 412. Bullock V. Smith, 347. Bumgarner v. Manney, 340. Burden v. People, 583. Burham v. State, 107, 117. Burkliard v. State, 521, 522. Burley v. McGough, 526. V. State, 377. Burnett v. State, 311. Burnham v. State, 104, 105. Burns v. People, 45. r. State, 430. Burrell v. State, 442. Burrow's Case, 233. Burson v. Mahoney, 348. Burton's Case, 104. Bush I'. Commonwealth, 311, 312. Buster i'. State, 591. Butler V. Commonwealth, .30, 128, 540. Butler V. St. Louis Ins. Co., 527. V. People, 30, 39. Byers v. Commonwealth, 387. Byrd i-. State, 275. V. State, 547, 549. Cady V. State, 548, 554. Cahill V. People, 175, 192. Cain V. State, 548, 549. Caldwell v. State, 119, 120, 124. Callahan v. State, 31, 329. Callender v. Callender, 546. Calloway v. Nifong, 355. Calvert v. State, 308. Camp V. State, 288. Campbell, Ex parte, 329. i\ People, 175. V. State, 104, 278, ,306, 421, 427, 432, 440, 457, 459, 505, 544. Cancemi v. People, 388, 389, 393. Candy v. State, 278. Cannon v. State, 80. Cantwell v. State, 353, 388. Carden v. State, 510, 511. Cargen v. People, 279. Carico v. Conmionwealth, 176, 207, 427, 430. Carmouche v. Bonis, 13. Carnwell v. State, 248. Carr v. State, 402, 403, 474. Carrington v. People, 126. Carroll, Ex parte, .322. V. Commonwealth, 514, 515, 558. xxvni TABLE OF CASES. Carroll r. State, 13, 15, 157,172, 174, 19G, 204, 212, 2i:J, ;381, 535, 555. Carter v. State, 231, 232, 23(5, 240, 248, 249, 250, 428, 502. Cartright v. State, 241, 244. Cartwright v. State, 178, 202,231,235, 240, 245, 250, 342, 345, 413. Casat V. State, 538, 5G1. Casey v. State, 504, 569, 593. Cass' Case, 552. Cates V. State, 90, 155. Cathcart v. Commonwealth, 30, 77, 81, 280, 483, 485. Cavanagh v. State, 341. Cavanah v. State, 342. Cavaness v. State, 540. Central R. Co. v. Mitchell, 347. Chambers v. Falkner, 71. V. Greenwood, 340, 347. I'. State, 550. Chaney, Ex parte, 329. Chapman v. Peojjle, 303. Charter Oak Life Ins. Co. v. Rodel, 527. Chase v. People, 537, 500. V. State, 285, 280. 450, 457. Cheek v. State, 173,207,359,360, 437. Chilclers r. State, 558. Childs V. State, 489, 511. Cliivarrio v. State, 308. Choice V. State, 80, 231, 232, 233, 234, 2.39, 24(i, 351,499, 500. Chrystal v. Commonwealtii, 101. Chute V. State, 534. Clampitt V. State, 475, 476. (Manton v. State, 147. Clapp V. FuUerton, 527. Clark V. State, 103, 10,5, 107, 110, 1(!0, 227,243,375,382, 527. Clarke v. State, 30, 70, 80, 303, 502. Clary v. Clary, 527. Claxton V. State, 158. Clayton v. State, 147. Clem V. State, 359, 300, 301. Clements i;. State, 10, 11, 32,08, 70, 80, 215, 210. Clifford V. State, 104, 105, 178, 201. Clive V. State, 241, 244. Cloud V. State, 220. Clough V. State, 409, 502, 555. Cluck V. State, 30, 232, 239, 245, 247, 402. Cluverius r. Commonwealth, 279, 433. Coates V. People, 290, 558. Cobb V. State, 347, 482, 493, 494, 503, 551, 552. Cobia V. State, 591. Coble r. Coble, 343, 347. Cochran v. State, 404. Cochrum v. State, 81, 82. Coffee V. State, 105. Coffman v. Commonwealth, 38, 176, 583. Cohea r. State, 559. Coker v. State, 174, 429, 509. Colbath V. State, 232. V. State, 240, 243, 591. Coldiron, Ex parte, 317. Coldwell V. State, 119. Cole's Case, 232. Trial, 227. Cole i;. State, 370, 382. Colee V. State, 527. Coleman v. Moody, 411. V. People, 30. V. State, 404, 405, 559. Collier v. State, 97, 371, 420, 441. . Collins V. Commonwealth, 126. V. People, 557, 558. V. State, 127. Colt r. People, 290. Colter, Ex parte, 324. Combs Case, Harvey of, 323. V. State, 342, 347, 355, 437, 438. Commander v. State, 29, 30, 495, 500, 513. Commissioners v. Morrison, 387. V. Seabrook, 387. ' Commonwealth v. Abbot, 495. V. Ailstock, 298, 299. V. Andrews, 40. V. Arciier, 328. V. Barker, 298. V. Barnacle, 457. V. Biron, 145. r. Blair, 58. r. Bonner, 30. V. Bosworth, 558, 559. V. Bowen, 53, 50, 57, 58, 133. V. Boyle, 405. r. Brown, 550, 557. r. Call, 550. V. Campbell, 36, 39, 400, 467. r. Carey, 158, 177, 187, 189, 441. V. Chapman, 133, 285, 294, 295, 296, 354. V. Cooley, 00. V. Costeilo, .383, 384. V. Costley, 34, 292, 542, 54-3, 509. TABLE OF CASES. XXIX Commonwealth v. Crawford, 177, lOfi. V. Crozier, 240. V. Cuffec, 479, 480, 548, 540, 550, 552, 551. I'. Daley, 105. V. Dennis, 52, 60. V. Dcnsmore, 44:». V. Desmarteau, lO:', 107, 110, 304. V. Devlin, lOo, 107, 110. V. Dorsey, 2:]!), 250. V. Dougherty, 240. V. Drake, 554. V. Drew, 30, 70, 157, 158. v. Drum, 13, 16, 17, 67, 70, 81, 90, 103, 105, 107, 115, 130, 141, 143, 177, 190, 203, 536, 559, 570, 571. r. F.dtly, 538. i\ Fcrrigan, 458, 467, 517. i: Flanigan, 100. V. Fletcher, 240. V. Fo.x, 291. V. Galligan, 544, 547. V. Gillespie, 48. v. Green, 20, 71, 248, 249. V. Hackett, 438. V. Hagenlock, 241. V. Ilaney, 441, 444. V. Hanlon, 100, 546, 548, 554. V. Harley, 120. r. Ilarman, 555, 570, 571. V. Hart, 232, 237, 238, 240. V. Harvey, 556. V. Hawkins, 232, 239, 245, 530. V. Hayes, 550. V. Hersey, 285, 417, 407, 591. r. Hill, 42, 127. V. Hilliard, 188, 458. V. Holder, 40. V. Holland, 20. ?•. Holmes, 557, 558, 559. r. Horton, 358. V. Howe, 548. V. Huglies, 372, 373. r. Ingersoll, 358. V. Jackson, 57, 58. V. Jones, 106, 243. V. Keeper of Prison, 57, 58, 101, 102, 169, 317. V. Knapp, 392, 544, 548, 550. V. Kenney, 556. t'. Keyes, 556. V. Leight, 266. r. Lemley, 317, 325. Commonwealth v. Lewis, 373. r. Linton, 200, 205, 266. V. Lynch, 155, 538. V. Macloon, 2, 28, 34, 42, 44, 46, 47, 48, 128, 260, 261. r. Malone, 232, 239, 245. V. Marsliall, 60. V. iMartin, 290. V. Matthews, 450, V. McAfee, 101, 295. I'. McCann, 540. v. McDermott, 479, 482. V. McLaughlin, 30, 158. r. McNeill, 205, 200. v. Mel 'ike, 29, 38, 39, 140. v. Mead, 205, 457, 459, 556. V. Jletropolitan R. Co., 164. V. ]Mink, 39, 53, 55, 00, 14.3. V. Miller, 287. V. Mitchell, 139, 553. V. Morey, 548. V. Mosler, 144, 551, 552. V. Murpliy, 304, 510. r. Murray, 103, 115, 442, 443. t\ Meyers, 205. ■ V. Xott, 548. l: O'Brien, 127, 549. V. Parker, 01, 109, 201. V. Pemberton, 127. V. Peters, 202. V. Pettit, 546. I'. Piper, 530. V. Pitsinger, 556. V. Piatt, 231, 235, 240, 250. V. Pomeroy, 522. r. Porter, 349. V. Preece, 548, 552. V. Price, 558. I'. Prophet, 367. V. Hailing, 108, 441. V. Randall, 109. i\ Reynolds, 555. V. Rich, 520. V. Riley, 12, 95, 139, 172, 170, 196, 197, 202. V. Roberts, 441, 444. V. Robinson, 373, 468, 564, 569. V. Roby, 45, 411. !'. Rodes, 07. V. Rogers, 525, 538. V. Sanborn, 544. r. Scott, 558. r. Sego, 551. V. Seibert, 189. V. Self ridge, 139,143, 172, 176, 195. XXX TABLE OF CASES. Commonwealth v. Semmes, 322, 328. r. IShaw, 379. I,-. Smith, 341, 345, 546, 548, 552 V. Snelling, 30. 1-. Stafford, 290. V. Stinger, 279. V. Stout, 30. V. Sturtivant, 523, 525, 534. V. Sullivan, 530. V. Taylor, 548, 549. V. Tliompson, 27, 164, 482. V. Tilton, 358. V. Tuckerman, 548, 549, 550. V. Walker, 479, 482. V. Webster, 1, 31, 65, 68, 139, 140, 143, 290, 426, 536, 564, 569, 571. r. White, 170. V. Wliitler, 155. V. Wiiittemore, 548. V. Williams, 103, 107, 115, 442, 443. V. Woodward, 189, 294, 297. V. Worcester, 341. V. York, 1, 5, 30, 32, 05. 76, 80, 127. Conn V. People, 77. V. State, 70, 372. Connaughty v. State, 126, 128, 129, 133, 134, 173, 207. Connecticut Mut. Life Ins. Co. v. Groom, 50. V. Lathrop, 526, 527. Conner v. Commonwealth, 310, 311, 312, 359, 300. V. State, 77, 556. Conover v. State, 357. Cook r. Kitter, 342. V. State, 379, 382, 383, 401. Cooper, Ex parte, 317. V. Massachusetts Life Ins. Co., 50. V. State, 528. Copeland v. State, 156, 177, 190. Copp V. Hennikcr, 386, 387. Copperman i;. People, 30. Corbett v. State, 328, 556. Cordell v. State, 294, 295. Cornelius i'. Commonwealth, 427, 432. Cornwallis' Case, Lord, 139. Cornwell v. State, 231, 232, 236, 243, 245, 248, 249. Cory !'. Silcox, 348. Coryell v. Stone, 526. Costley V. State, 457. Costly V. State, 391, 393. Cotton V. State, 81, 176, 188. Couch V. State, 367. Coward v. State, 510. Cox V. People, 103, 107, 114, 290, 309, 548, 549, 552. V. State, 104, 100, 308, 404, 436. CoxwcU V. State, 501. Coyle V. Commonwealth, 230, 521, 538, 561. Craft r. Commonwealth, 105, 394. V. State, 103, 107, 110, 532, 558, 569. Crawford v. State, 556, 575. V. Williams, 355. Creek v. State, 142, 175, 204. Creswell v. State, 458, 460. Crist V. State, 402, 403, 505. Crocker v. Hoffman, 408. Crookham v. State, 442. Croom, Ex parte, 320, 322, 329. Cross V. People, 558. V. State, 173, 240, 341, 342, 345, 563, 569. Crowell V. Peru, 352. Crusen v. State, 375, 383, 384. Cummings v. State, 46. Cunningham v. Neagle, 11, 15, 16. V. State, 119, 537, 560. Curry v. Commonwealth, 243, 245, 595. D. Dacey v. People, 84, 103, 229. V. State, 367. Dains v. State, 81, 99, 104, 105. Dale V. State, 104. Daly V. People, 118. Danby's Case, 316, 321. Dane Co. v. Dunning, 387. Daniel v. State, 541, 545, 575. Darby v. State, 174, 203, 438, 439, 440. Darling r. Williams, 177. Darry v. People, 97. Davidson v. State, 126, 429, 431. Davis, Jefferson, Case of, 322. V. Foster, 488. ?;. Franke, 489. V. People, 175, 196,411. V. State, 17, 77, 239,240,242,275, 310, 312, 328, 334, 343, 354, 410, 483, 485, 526, 549, 564, 606, 569. TABLE OF CASES. XXXI Davison v. People, 16, 17, 70, 80, 157, 175, 203, 212, 2i;j. D^wley V. State, 557. Dawson v. State, 232, 242, 245, 248, 250, 3G3. Dean v. Commonwealth, 503, 505, 570. De Arman v. State, 173, 193, 194. Deathridge v. State, 550. De Forest r. State, 175, 190, 197, 204, 501, 502. Dejarnette v. Commonwealth, 227, 520, 527. Dennis t-. State, 290, 292. Derby v. Derby, 546, 548. Dernnan v. People, 159. Dervies v. Heywood, 347. V. Phillips, 343, 346. Dexter v. Hall, 526. De Witt V. Early, 527. Dias V. State, 158, 275, 294, 307. Diaz V. State, 297. Dick V. State, 548, 591. Dickens v. State, 30. Dickerson v. Burke, 342, 343, 347. V. State, 555, 583, 584. Dickinson v. Barber, 520. Dickson v. State, 427, 431, Digby V. People, 440. DiU V. State, 12, 80, 95, 309, 582. Dille V. State, 348, 350. Dillin V. People, 499, 500, 505. Dillon V. State, 294. Dilworth v. Commonwealth, 392. Diman v. State, 547. Dixon V. State, 440, 401, 402, 403, 530, 545. Dobbins v. Oswalt, 348. Dodge V. People, 375, 377, 384. Doe V. Regan, 527. V. Roe, 540. Dolan V. State, 173, 179, 204. Doles V. State, 477. Dolloff V. Stimpson, 393. Donellan v. Commonwealth, 32, 80. Donelly v. State, 103, 105, 109, 112. Donnelland's Case, 0. Donnelly v. State, 420, 441, 443, 550, 594. Doran v. State, 592. Dorgan v. State, 400. Doster v. Brown, 342, 347. Dougherty v. Commonwealth, 376, 382, 401. Douglass V. State, 119, 120, 124, 372. Dove V. State, 227, 527, 538, 560. Dover v. State, 591. Dow I'. Murrill, 546. Dovvling V. State, 275. V. State's Case, 388. Dows V. Harper, 355. Doyle V. State, 353. Dozier v. State, 67, 576. Drake v. State, 104, 139, 158, 172, 173, 395, 442, 457, 459, 460, 461, 534. Draper v. State, 149. Drennan v. People, 158. Drinkout v. Eagle Mach. Works, 352. Driskill v. State, 3G2, 394. Drumright v. State, 550. Drury r. State, 320. Drye v. State, 289. Dubose V. State, 532, 533, 591. Ducher v. State, 61. Dudley, In re (the Mignonette Case), 18. Duebbe v. State, 104, 105. Duff V. Combs, 355. Duffield I'. Morris, 527. Duffin i: People, 341. Dukes V. State, 76, 99, 290, 292, 294, 429, 450, 503. Dula v. State, 261. Dumas v. State, 133, 304, 307, 408, 440, 509, 542, 547. Duncan v. State, 118, 120, 174, 178, 196, 203. Dunliam's Appeal, 527. Dunn V. Commonwealth, 376, 380, 382, 401. V. State, 440, 443, 461, 510, 512, 558. Dupree v. State, 16, 173, 429, 457, 458, 459, 473, 483. Duran v. State, 104, 106, 107, 118. V. Territory, 125. Durham v. State, 94. Dwyer v. State, 280. Dyson, Ex parte, 328. V. State, 176, 217. E. Earns V. State, 147. Earll V. People, 341, 557, 558. Early v. State, 351, 505, 515, 516. Earp V. State, 545, 547. Eason v. State, 594. Eastman v. Wright, 303. xxxn TABLE OF CASES. Eastwood V. People, 387, 410. Edmonds v. State, 306, 430, 437. Edmonson v. State, 2, 34, 289, 298, 300. Edward v. Commonwealth, 391, 392. Edwards v. State, 17, 178, 283, 285, 289, 429, 582. Eggers I'. Eggers, 527. Eiland v. State, 80, 84, 173, 182, 190, 201, 426, 457, 544, 557. Elick V. Territory, 351, 352. Eliza V. State, 370, 384. Elkin V. People, 404. EUiston V. State, 579. Emulous, The, 20. Epps r. State, 290, 341, 342, 375, 379, 580. Errington's Case, 442. Erwiu V. State, 81, 141, 177, 204, 200, 367. Estes i". State, 231, 232, 230, 239, 244, 246, 247. Ettinger v. Commonwealth, 515, 516, 556. Evans v. Evans, 546. V. People, 87, 474. V. State, 80, 119, 168, 174, 182, 404, 472, 474. Everett v. State, 461, 464, 528, 529. Ezell, Ex parte, 328. F. Fahnestock v. State, 103, 105, 118, 119, 307, 457, 535. Fain i'. Commonwealth, 175, 252, 490. Eairchild v. Bascomb, 526. Faley v. People, 318. Faliin r. State, 582. Farmau v. Lanman, 343, 346. Farrant v. Barnes, 162, 164. Farrell r. State, 238. Farrer v. State, 104. Farrington's Case, 321. Farri.s v. Commonwealth, 16, 17, 84, 175, 192. Felder V. State, 438, 498, 531, 533. Felix V. State, 517, 588. Felton r. United States, 30, 104. Fennesy, Kx parte, 330. Kenton's Case, 102. Ferguson v. State, 12(i, 341, 342, 343, 346. Fernandez v. State, 467, 468. Ferrell v. State, 240, 243, 246. Ferrill v. Commonwealth, 46. Ferrington's Case, 316. Field V. State, 143. Fielder v. State, 496. Fields V. State, 119. Fife i\ Commonwealth, 548, 549. Fight V. State, 375, 383. Filkins v. People, 173. Finch V. State, 173, 203, 200, 320, 324, 320, 499, 501, 503. Finn V. State, 283, 285, 280, 397. Firby v. State, 275. Fisher v. People, 500. V. State, 133, 283, 496. Fitzcox V. State, 558. Fitzgerald v. People, 275, 285, 286. V. State, 119, 441. Fitzgerold v. People, 277, 283, 575. Fitzhugh 1-. State, 402, 403, 429. Fitzpatrick v. Commonwealth, 230. V. People, 364. V. State, 179. Flagg V. People, 548, 549. Flanagan v. People, 227, 234, 235, 245. V. State, 144, 547. Flanagin v. State, 549, 558. Flanegan v. State, 496, 497. Flanigan v. People, 231, 233. Fleetwood v. Commonwealth, 92. Fletcher v. State, 346, 351, 352. Flinn i\ State, 276. Floyd, Ex parte, 317. 'r. State, 510,511. Fogarty v. State, 142. Ford V. State, 239, 250, 561, 569, 591. Forman v. Commonwealth, 531. Forrest v. State, 308. Forrester's Case, 216. Forsytlie v. Cothran, 343, 347. Fortenberry v. State, 176, 203, 317, 303. Foster, /n re, 318. V. State, 178, 204, 476, 477. Fonts V. State, 279, 282, 283, 285, 280, 287, 362, 363, 364, 547, 548. Fowler r. State, 401. Fo.\ V. Lambson, 557. V. State of Ohio, 366. Frain v. State, 547. Francis r. Porter, 288. Frank r. State, 40, 126, 133, 134, 548, 550. Franklin v. State, 456, 457, 533, 542, 547. Eraser i: State, 475, 517, 518. TABLE OF CASES. XXXIU Free v. State, 347. Freeman v. State, 76. Freligh v. Ames, 348. French v. State, 5-59, 569. Friar v. State, 362. Fricry v. People, 231, 232, 235, 246, 461. Frost V. Commonwealth, 556. Fry V. Bennett, 347. Fuller V. People, 280. Fundy v. State, 528, 529. G. Gahan v. People, 596. Gainey v. People, 182, 583. Gaitan v. State, 240. Gallagher v. People, 367. Galvin v. State, 93. Gandolfo v. State, 381, 413, 414, 488. Gann v. State, 142, 155. Gardner v. People, 354. V. State, 467. Garnet v. State, 214. Garrard v. State, 548. Garrett v. State, 499, 501, 513. Gates V. Meredith, 246, 248. Gatlin i'. State, 31, 81. Gehrke v. State, 279, 295. George v. State, 558, 569, Gibbons v. People, 407. Gibson v. Commonwealth, 289, 290. V. Gibson, 526. V. State, 476, 477, 484, 563, 570. Giddings v. Steele, 356. Gilchrist, Ex parte, 322. Giles I'. State, 104, 106, 107, 117, 3-58. Gilleland v. State, 177, 203. Gillespie v. State, 392. Gillooley v. State, '232, 343, 510. Gilmanton v. Hamm, 411. Gilmore v. People, 175. Giskie v. State, 310. Gladden v. State, 174, 192, 272, 273, 375, 376, 5.36. Glenn v. State, 583. Glover v. Woolsey, 392. Godfrey v. State, 556. Goersen r. Commonwealth, 290. Golden v. State, 231, 232, 239, 242, 244, 250, 472. Golliher v. Commonwealth, 31, 94, 2-32, 242, 247. V. State, 97. C Gomez v. State, 565, 570. ' Gonzales v. State, 104, 106, 107, 118, 290, 291. V. State, 428. Good, Ex parte, 326. Goodall V. State, 77, 177, 188, 194, 441, 536. Goodhue, Matter of, 322. V. People, 278. Goodin v. State, 353, 388. Goodloe V. State, 274. Goodman v. State, 158. Goodwin's Case, 317, 326. V. State, 239, 364, 461, 464, 475, 526, 562. Goodwyn v. State, 290, 293. Gordon v. People, 570. Gore V. State, 479, 482. Governor v. Fay, 328. Grady v. People, 563, 569. Graeter v. State, 351, 352. Graham v. Commonwealth, 77, 538, 561. V. State, 376, 384. Grainer r. State, 184. Grainger v. State, 177, 189, Gramm v. Boener, 26. Granger v. State, 18. Grant v. People, 388. V. Thompson, 526, 527. Graves v. State, 280, 413, 456,5.38,561. Gray v. Burk, 346. V. Combs, 14, 172, 214, 400. V. State, 118, 120, 124. Green's Case, 367. V. Commonwealth, 103, 105, 107, 11.5, 279, 286, 318, 367. V. State, 76, 80, 81, 104, 105, 118, 120, 126, 176, 261, 429, 536, 556, 504, 568, 569. Greenfield v. People, 470, 497. Greenley i-. State, 560. Greer v. State, 372. Gregg V. McDaniel, 410. Greschia v. People 175, 203, 204. Gresham v. Walker, 596. Greta v. State, 583. Grigg V. People, 349. Grigsby v. State, 496, 499. Grimm v. People, 377, 384, Grisson v. State, 405, 458. Griswoldj;. State, 556, 557. Grosse r. State, 549. Grosvenor v. St. Augustine, 44, Guedel v. People, 289, 291, 293, XXXIV TABLE OF CASES. Guetig V. State, 227, 425, 537, 562, 569. Guice v. State, 176, 189, 193. Guile V. Brown, 387. Guilford v. State, 244, 246. Guillotte V. New Orleans, 366. Gunter v. State, 231, 359, 361, 508, 525, 526, 569, 582. Gwatkin v. Commonwealth, 245. H. Ilackett, In re, 387. V. People, 441, 447, 594. Hadjo V. Gooden, 489. Hadley v. State, 29, 30, 80, 139, 140. Hagan v. State, 282, 286, 520. Hasue V. State, 76. HaUe V. State, 69, 81, 232, 236, 245, 246, 248, 250, 501. Hall V. Commonwealth, 396, 398, 520, 521. V. Huse, 545. V. State, 176, 196, 517, 731. Hallam r. Means, 26. Haniby v. State, 77, 81, 99. Hamilton, Ex parte, 176, 196, 199. V. Comnionwealtb, 376. V. People, 268, 557, 558. V. State, 46, 548. Hammond v. State, 20. Hampton i-. State, 314, 582. Hancock v. Baker, 207. Haney i-. State, 289, 292, 595. Hannahan v. State, 558. Hannon v. State, 126. Hanoff V. State, 388. Hanrahan v. People, 30. Hanvey v. State, 230, 236, 339, 241, 245. Harcourt's Case, 208. Hardin v. State, 298, 300, 527. Harrel v. State, 136. Harriman v. State, 384. Harrington v. State, 126, 142, 143. Harris r. Harris, 547. V. State, 67, 118, 119, 120, 124, 145, 179, 419, 428, 429, 551. Harrison i\ Commonwealtli,85,91,458. V. State, 13, 144, 157, 174, 212, 213, 395, 461, 462, 476, 477, 495, 558, 565, 508, 570, 573. Hart V. Commonwealth, 420, 401. r. State, 119, 120, 124, 534. Hartigan »'. Territory, 402, 403, 401, 405. Hartung v. People, 523, 524. Harvey's Case, SKi, 321. Ilatchett V. Commonwealth, 565, 566, 570. Hathaway v. Nat. L. Ins. Co., 527. Hathorn v. King, 526. V. Richmond, 27. Hawe I'. State, 500. Hawkins v. Bowie, 355. V. State, 84, 144, 174, 528. Hawley v. Commonwealth, 312. Hawthorne i'. State, 80, 427, 536, 509. Hayes v. State, 157. Ilaynes v. State, 17, 174, 201, 204, 501. Hays V. State, 441. Heacock v. State, 313. Head v. State, 80. Heard v. State, 563, 570. Heath v. Commonwealth, 462, 467, 468. V. State, 558. Hector v. State, 548, 549. Heffren, Ex parte, 317, 324, 325, 326, 330. Heine v. Commonwealth, 40. Hellenes v. State, 417. Hemmaker v. State, 47. Henderson v. State, 192. Hendrickson v. Commonwealth, 169, 555. Hennies v. Vogel, 342. Henning v. State, 103, 334, 404, 405. Henrie v. State, 283. Henry i-. State, 80, 242, 244, 281, 309, 565, 570, 596. Henslee v. Cannefex, 354. Henslie v. State, 232. Herbert's Case, 320, 321. Ilcrrin i-. State, 70, 104. Hewlett r. Wood, 527. Higbie ?'. Comstock, 355. Higlit r. United Stktes, 317, 322, 325, 326. Hill I'. Commonwealth, 30, 81, 105, 420, 442, 536. t'. People, 29, 31, 08, 286, 380. 387, 388. V. State, 30, 80, 119, 147, 376, 377, 379, 380, 383, 440, 441, 443, 450, 578, 583, 587. Hillman v. Chester, 355. Hindi r. State, 155, 174, 483, 579. Tlinchliffe's Case, 173. nines v. Commonwealth, 452. V. State, 279. Ilinton V. State, 142, 177, 191, 203. TABLE OF CASES. XXXV Hirn v. State, 279. Hirston v. State, 214. Hittner v. State, 175, 202, 471. Hock, Ex parte, 317, 325, 326. Hodde V. State, 308. Hogan V. State, 119, 120, 125, 536, 505, 506, 570. Hoge, Ex jiarte, 328. Holcomb I,'. State, 527. Hoklen V. State, 351, 570. Holder v. State, 582. Holford V. Alexander, 355. Holland v. State, 90. Holler V. State, 429, 432. Holley I'. State, 173, 324, 326. Holliday v. People, 382. Holloway v. Commonwealth, 175, 204, 207, 427. V. Eeg, 274. Holly r. State, 30, 149. Holmes v. Commonwealth, 384. V. State, 174, 250, 206, 377, 563, 570, 583. Holsenbake v. State, 479, 541. Holt V. People, 396. V. State, 178, 191, 495, 496, 510. Holton I'. State, 376, 381. Honesty v. Commonwealth, 178, 190, 197. Honeycutt v. State, 476, 478, 554, 580. Hood I'. State, 30. Hooker v. Commonwealth, 376, 384. Hopkins v. Commonwealth, 4(il, 462, 473. Hopkinson v. People, 175. Hopps V. People, 483, 521, 537, 560, 561. Hopt V. People, 231, 235, 240, 242, 250, 401, 544, 557. Horbach v. State, 177, 427. Home V. State, 569, 571. Houck V. Barthold, 352. House V. Whitis, 339. Howard v. State, 146, 427, 429, 433, 573, 582. Howe V. Treasurer of Penfield, 387. Howell V. Fry, 387. V. State, 427. Howser v. Commonwealth, 531. Hoxie V. Home Ins. Co., 347. Hubby V. State, 119, 120, 124. Hudgins v. State, 175, 208, 244. Hudson V. Commonwealth, 548. V. State, 147, 178, 442, 557, 509. Huffman v. Commonwealth, 595. Hughes V. Hughes, 546. Hughes V. State, 558. Hughey v. State, 429. Huling V. State, 77. Hull V. State, 119. Humphreys v. State, 246. Hunling r. State, 11. Hunnicutt v. State, 178, 204. Hunt V. People, 441. V. State, 348, 349. Hunter v. State, 261, 304, 309, 519. Hurd V. People, 74, 80, 149, 153, 176, 443. Hurt r. State, 359. llussey V. State, 485. Hutchinson v. State, 383. Hyatt V. Adams, 27. I. Indianapolis v. Murphy, 352. Ingalls V. State, 236, 241. Ingram v. State, 173, 203. Inhabitants of Fayette v. Chesterville, 526. Irby V. State, 155, 156, 433, 442. Irvin V. State, 103, 106, 139, 177, 196, 200. Isaacs V. State, 16, 172, 177. Isham V. State, 127. J. Jackman v. State, 583. Jackson v. Commonwealth, 375, 376, 379, 381, 382, 383, 442, 444. V. People, 301. V. State, 17, 80, 84, 126, 144, 145, 173, 188, 190, 192, 201, 281, 390, 421, 456, 552, 555, 565, 570, 593. V. Wood, 306. Jacobs V. Commonwealth, 377, 521. James v. State, 177, 217. Jane v. Commonwealth, 272, 283, 583. Jaques v. Cesar, 355. Jarrel v. State, 404, 580. Jeffords v. People, 401, 464, 465. Jeffries v. Commonwealth, 377. r. Randall, 392. V. State, 240, 244. Jenkins v. North Carolina Ore Dress- ing Co., 343. V. Ore Dressing Co., 347. XXXVl TABLE OF CASES. Jenkins v. Stale, 54G. Jennings v. State, 279. Jewell V. Commonwealth, 375, 380, 383, 384, 389. Jim V. State, 547. V. Territory, 225. Johns i\ Commonwealth, 133. Johnson v. State, 104, 107, 117, 143, 146, 174, 177, 188, 190, 212, 245, 341, 359, 3G0, 362, 363, 364, 420, 427, 440, 444, 447, 461, 462, 472, 475, 540, 545, 547, 557, 562, 564, 570, 591. Johnston's Case, 77, 78. V. Commonwealth, 61. Jones, Ex parte, 324. V. Commonwealth, 231, 235, 239, 243, 246, 250, 373. V. People, 408, 411, 457. V. State, 30, 69, 80, 83, 93, 94, 134, 136, 153, 158, 173, 204, 205, 231, 232, 235, 244, 245, 294, 295, 373, 379, 410, 411, 413, 414, 438, 439, 440, 461, 472, 474, 545, 552, 562, 564, 566, 569. Jordan v. State, 70, 133, 134, 178, 189, 359, 360, 440, 449, 453, 454, 462, 471, 501, 502, 548, 549, 582. Josephine v. State, 555. Joy r. State, 309. Judge u. State, 149, 173, 178, 201. Jumpertz v. People, 405. K. Kaime r. Trustees, 342. Kain v. State, 282, 286, 287. Kallock V. Superior Court. 268. Kane v. Commonwealth, 309, 442. Kee V. State, 37, 411. Keete v. People, 310. Keenan v. Commonwealth, 10.3, 105, 231, 235, 243, 245, 24(>, 250. V. State, 161, 405. Keener v. State, 12, 13, 157, 172, 174, 329, 392, 427, 429, 432, 463. Kehoe v. Commonwealtli, 444, 401. Keithler r. State, 274, 315, 544. Keller v. Scott, 355. Kelley v. People, 556. V. State, 35, 36, 37. Kelly V. Commonwealth, 103, 107, 116, 118, 243, 250. r. People, 388. V. State, 232, 239, 243, 245, 384, 440, 547. Kelsey v. Bush, 556, 557. Kelsoe v. State, 479, 482. Kemp V. Cook, 355. V. State, 563, 570. ( Kenan v. State, 393, 394. Kendall, Ex parte, 317, 325, 330. V. State, 178, 204, 206, 591. Kendrick v. State, 176, 569, 571. Kenna v. State, 559. Kennedy v. Commonwealth, 16, 17, 175, 528. V. People, 286, 342, 347, 515, 516. V. State, 95, 96, 591. Kenney v. People, 245. Kenny v. People, 231, 232, 243, 250. Kent V. Charlestown, 393. V. People, 77, 80. Kerese v. State, 367. Kernan r. State, 466, 469. Kerr v. State, 402. Kilgore v. State, 593. Killen v. State, 17. Kilpatrick v. Commonwealth, 70, 73, 81, 103, 105, 142, 570, 571, 583. Kilrow V. Commonwealth, 559. King V. Commonwealth, 139, 141. ?•. Fielder, 384. V. Hollingsberry, 384. V. State, 57, 87, 178, 204,311,427, 534, 551, 554, 562. Kingen i-. State, 175. Kingston v. Towle, 387. Kinnaman v. Kinnaman, 342, 343. Kinney v. People, 175, 201. Kirby v. State, 129, 508. Kirk's Case, 323. V. State, 404, 407, 408. Kittrel, Ex partp, .326. Kizer v. State, 347, 349. Kleinschmidt v. Dunphy, .388. Kocrner v. State, 499, .500. Koontz V. State, 595, 596. Koppikus V. Commissioners of State Capitol, .387. Krebs v. State, 591, 595, 590. Kremling !). Lallman, 401. Kriel v. Commonwealth, 231, 235, 243, 304, 5.38, 561. Kunde V. State, 491, 494, 510, 513, 570. TABLE OF CASES. XXXVll La Beau r. People, 401, 463. Lacy I'. State, 215. Lafayette v. Weaver, 34L Lake Erie W. & St. L. R. Co. v. Heatli, 387. Lakin v. Lakin, 00. Lamar i;. State, 84, 170, 194, 195. Lamb v. State, 402. Lambeth v. State, 157, 420, 548. Lancaster v. State, 231, 233, 235, 243, 247. Land );. Williams, S55. , Lander v. State, 177, 190, 191, 402. Landis v. Landis, 520. Lane v. Commonwealth, 583. V. State, 505, 570. Lanergan v. People, 32, 70, 105, 232, 245, 248, 309. Lang I'. State, 102, 104, 100, 108, 457, 479, 509, 570, 572. Langstaffe's Case, 157. Larkins r. Sarter, 342, 347. Laros v. Commonwealth, 540, 548. Latham v. Latham, 546. Lawless v. State, 500. Lawlor v. People, 175. Lawrence v. Commonwealth, 376, 377, 378, 382, 428, 432. V. State, 372. Lawson v. State, 555. Lawton v. Sun Mat. Ins. Co., 232. Layier v. Commonwealth, 285, 298, 300, 309. Laydon v. State, 542. Leach v. Prebster, 527. Leache v. State, 227, 228. Ledbctter v. State, 447. Lee V. State, 97, 161, 102, 164. V. Tillotson, 386. Leiber v. Commonwealth, 441, 446. Leigh ('. People, 71. Leighton v. People, 69, 71, 105. V. Sargent, 27, 410. Leonard v. State, 173, 201. V. Territory, 280, 495, 505, 570. Leschi v. Washington Territory, 375, 376, 377, 591. Lester v. State, 290, 298, 300, 322, 323. Levells v. State, 174, 179, 203. Levison v. State. 547, 549. Levitt's Case, 31. Levy V. Langridge, 164. Lewallen v. State, 458. Lewis V. Commonwealth, 427. V. State, 67, 68, 104, 173, 193, 441, 472, 474. Lightfoot V. State, 540. Lilly V. .State, 213. Lincoln v. Smith, 388. Lindsay v. People, 557, 558. V. State, 575. Lingo V. State, 174, 201, 429. Liskosski v. State, 579. Lister y. State, 178, 188. Little V. Commonwealth, 476, 477. V. State, 429. Livingston v. Commonwealth, 39, 279, 286, 298, 310, 311, 438, 439. Lockett V. State, 559. Lodano v. State, 280. Loeffner v. State, 282, 283, 286, 347, 390, 538, 561. Logan V. State, 429, 363, 444. Logue V. Commonwealth, 23, 177, 187, 189, 203. Lohman v. People, 168. Long V. State, 139, 172, 176, 244, 290, 293, 376, 427, 556, 569, 570. Longworth, Ex parte, 328. Loper V. State, 363. Lord V. Beard, 526. 17. State, 363. Love V. State, 547. Lovelady v. State, 540. Lovell V. State, 274. Lovett V. State, 508. Lowenberg v. People, 32. Loyd V. Hannibal & St. J. R. Co., 341, 342, 347. Loza V. State, 245. Luby V. Commonwealth, 175, 207. Lucas V. State, 119. Luker v. Commonwealth, 441, 449, 454, 455. Lum V. State, 578. Lumm V. State, 317, 322, 325, 326, 328, 330. Lumpkin v. State, 558, 559. Lutz V. Conimonwealtii, 289. Lynch v. Commonwealth, 51, 155, 230, 379, .382, 383. V. People, 317, 321, 325, 329. V. State, 177, 190, 191, 348, 349, 470, 477. Lyon V. Lyon, 546. V. State, 80, 81, 83. Lytte V. State, 240, 242, 247. XXXVIU TABLE OF CASES. M. Mackey v. State, 144. Macklin's Case, 81. Maconnehey v. State, 248. Maddy's Case, 155. Maher v. Comstock, .355. V. People, 09, 70, 71, 81, 142, 144, 155, 175, 203, 53G, 537, 583. V. State, 407. Malione, Ex parte, 326. Major V. State, 334. Malin v. Malin, 547. Malison, In re, 317, 318. Malone v. State, 174, 193, 244, 245. Manhattan Ins. Co. v. Broughton, 52. Manning's Case, 222. Maples V. State, 479, 480, 481. March v. Walker, 17. Marcum v. Commonwealth, 175, 204, 441. Marion r. State, 515, 516, 533, 542, 543. Marks, Ex parte, 328. Marler v. State, 461, 511, 51-3, 517, 559, 588. Marnoch v. State, 178. Marnock v. State, 501. Marsh v. Mitchell, 239. Marshall v. State, 236, 239, 564, 569, 581. Martin v. State, 193, 344, 371, 381,593. Marts V. State, 458, 459. Mask V. State, 312, 314, 513, 583. Massengale i'. State, 562, 570. Massey v. State, 549. Mastronada v. State, 354, 357. Matchin v. Matchin, 546. Maton I'. Peoples, 373. Matthews v. State, 545. Maurer v. People, 375, 376, 381, 388. Maxwell v. State, 462. May V. People, 404, 407, 457, 459, 460, 540. V. State, 178, 204, 440, 444, 576, 579. Mayes v. People, 70, 77, 439. V. State, 438. Mayfiehl v. State, 429, 430, 583. Mays V. Comnionwealtli, 388. Mc.\dams v. State, 07, 69, 80, 104, 279. McAllister v. State, .35. McAnally v. State, 513. McCall V. United States, .363. McCandless v. McWha, 27. McCitnn V. People, 570. McCarty v. People, 483, 484. McCarty v. State, 232, 243, McCauley v. United States, 358. McClackey ;;. State, 527. McConkey v. Commonwealth, McConnell v. State, 279, 283, 418, 579. McCorkle v. State, 379, 380. McCoy, V. State, 72, 77, 78, 91, 149, 151, 320, 362, .364. McCrary, Ex parte, 320. McCreary v. Commonwealth, 408. McCue V. Commonwealth, 81, 118, 519. McCuUoch V. State, 539, 540, 541, 556. McCullough V. State, 583. McDaniel v. State, 13, 14, 17, 66, 76, 104, 105, 157, 212, 420, 483, 538, 581, 583. McDonald (••. State, 414. McDonough v. McNeil, 414. McDougal, 538. McGee v. State, 310. McGehan, Ex parte, 367. McGinnis v. State, 501, 528, 536. McGlothlin v. State, 648. McGuffie V. State, 149, 151, 591. McGuire v. State, 392. Mclntyre v. People, 232, 237, 244, 245, 373. Mc Jenkins v. State, 352. McKee v. People, 556. McKeen v. State, 126. McKenzie v. State, 69, 104, 231, 239, 538. McKenna v. People, 457, 459. V. State, 569. McKinney v. People 362. V. State, 67, 144, 161. V. Western Stage Co., 355. McLain v. State, 341, 564, 570. McLaughlin v. State, 579. McLaurin i'. State, 579. iMcLcan v. State, 405, 440. McManus v. State, 142, 143, 172, 475, 476, 515. McMeen i-. Commonwealth, 472, 501, 570, 571. McMillan i-. State, 68, 595. V. State, 427. McNabb i'. Lockhart, 342, 347. McNaghten's Case, 538. McNcvins v. People, 583. McPherson v. State, 94, 164, 174, 179, 203, 208, 310, 533, 591. McQueen v. State, 105, 119. McQuillen v. State, 376. McKae v. State, 491. TABLE OF CASES. XX XIX McWhirt's Case, 90, 119, 139, 142, 579. Meade's Case, 211. V. Walker, 387. Means v. State, 531. Meece v. Commonwealth, 591. Meiers v. State, 290. Melton V. State, ,147, 149, 156. Mercer v. State, 232, 239, 250. Meredith v. Commonwealth, 176. V. Sanders, 355. V. State, 30, 31. Merrick v. State, 304. Merrick v. State, 290, 291. Metzger v. State, 547, 549. Menly v. State, 333. Mj'ers V. Commonwealth, 561, 570. Middleton v. State, 558. Miller v. Miller, 546. V. People, 30, 548, 549. V. State, 80, 102, 104, 105, 118, 143, 328, 363, 368, 369, 469, 470, 547, 549. V. Territory, 565, 567, 570. Mills V. Alexander, 356. V. State, 274. Milton r. State, 77, 99, 109, 112. Mimms v. State, 400, 420, 461, 472, 493, 494. Minich v. People, 351, 353, 362, 364, 420. Minton v. Commonwealth, 175. Mitchell V. State, 12, 17, 77, 104, 107, 116, 168, 174, 203, 274, 279, 286. Mitchum v. State, 31, 80, 105, 304, 305, 346, 347, 542, 543, 563, 564, 569. , Mix V. McCoy, 231. Mixon V. State, 496. Mize V. State, 174, 190. Mockabee v. Commonwealth, 92, 441. Moeck V. People, 440. Mohan's Case, 320, 321. Moke V. Brackett, 356. Monroe v. State, 157, 172, 174, 212, 405, 412, 427, 582, 583. Montgomery v. State, 142, 169, 440, 441. Moon V. State, 80, 239, 563, 569, 242, 244, 247. Moonej' v. State, 239. Moore, Ex parte, 73, 80, 142, 148, 317, 318, 321, .326. V. State, 97, 154, 317, 330, 443, 458, 462, 475, 533. Morehead v. State, 548. Morgan v. Commonwealth, 494. V. Durfee, 208, 209, 213. V. Hugg, 341. V. State, 405,- 440, 544, 589. Moriarty v. State, 428, 433. Morman v. State, 282, 591. Morris v. Piatt, 31, 174. Morrison v. McKinnon, 393. V. State, 173, 203, 205, 231, 235, 342, 389, 390, 519. Morrow v. State, 417. Morse v. Crawford, 527. Mortimer v. Mortimer, 547. Mosby, Ex parte, 326. Mose V. State, 358, 446, 479, 503, 544, 545, 547, 569. Moses V. State, 362. Moss V. Commonwealth, 404, 405, 406. Moyler i-. Moyler, 546. Moynahan v. People, 304, 305. Mo'ynihan r.. State, 39, 55, 103, 106, 109, 127. Munich v. State, 363. Murphy v. Commonwealth, 265, 266, 388. V. People, 76, 77, 80, 84, 139, 140, 175, 190, 366, 387, 440, 479, 483, 489, 505, 513, 514, 530, 552. !;. State, 80, 139, 140, 141, 142, 143, 173, 174, 201, 396, 397, 647, 549, 556, 591. Murray v. Commonwealth, 177. V. State, 81, 395, 536, 537, 583. Musick V. State, 104, 107, 117, 119, 120, 124. Mutual Life Ins. Co. of N. Y. v. Terry, 50. Mj'ers r. People 274. V. State, 173, 177, 190, 196, 354, 355, 357, 372, 558. N. Nash V. State, 261. Naughton v. Stagg, 348. Neagle, In re, 1^15, 16. Neal V. State, 404. Neales v. State, 388. Nelson v. State, 164, 166, 257, 294, 442, 447, 501, 555, 575, 576. Nesbit V. State, 546. Nettles, Ex parte, 440. xl TABLE OF CASES. Neville v. State, 591. Nevling v. Commonwealth, 103, 107, 115. Newcomb v. State, 429, 459, 472, 523, 500. Newton v. State, 84, 523. Nicholas i'. Commonwealth, 09. Nichols I'. Commonwealth, 105, 144, 239, 401. r. People, 457, 459. V. State, 235, 239, 240, 242, 246, 247, 280. V. Winfrey, 176. Nicholson v. State, 548. Niland v. State, 147. Nixon V. State, 365, 366. Nobles v. State, 217, 366. Noftsinger v. State, 469, 470, 556. Nokes V. State, 362. Nolan V. State, 375, 382. Nolen V. State, 351, 549. Noles V. State, 13, 14, 90, 93, 157, 174, 217, 274, 279, 301, 302, 400, 401, 420. Nomaque v. People, 382. Norton v. Moore, 527. V. People, 134. Nutt V, State, 302, -36.3. Nye V. People, 100, 141, 583. O. O'Brien v. People, 32, 248, 304, 527, 548. O'Connell v. People, 537, 560. V. Queen, 356. V. State, 298, 299, 576. O'Connor, Ex parte, 317, 319. V. State, 170, 402. Oder V. Commonwealth, 192. Odle V. State, 404, 40(!. Odor V. Commonwealth, 175. Ogdcn V. State, 304. Ogle V. State, 404. Ogletree v. State, 537. O'lTerrin v. State, 2.32, 246, 248. O'Kelly V. Territory, 280. Olivares v. State, 5(io. Olivaries i: State, 56, 57. Olive V. State, 290, 305, 557. Oliver r. State, 12, 13, 10, 17, 18, 80, 157, 173, 207. O'Mara v. Commonwealth, 470. Oneal v. State, 17. Onyby's Case, 70, 71, 72. Opinion of Justices, 351, 387, 388. Orman i-. State, 147, 148, 178, 204. Ormsby v. Johnson, 346. Ortwein v. Commonwealth, 51, 538, 562, 570. Osborn v. State, 376.. Osborne v. State, 104, 106, 107, 117. Otmer v. People, 504, 569. Outlaw V. State, 2.32. Overman v. State, 504, 569. Owen V. State, 547, 549. Packer v. People, 311. Page V. Price, 321. V. State, 304, 305, 306. Palmore r. State, 80, 82, 102, 106, 108, 174. 179, 426, 428. Panton r. People, 175. Pardee i\ Smith, 268. Parker v. State, 170, 177, 178, 207, 396. Parks V. State, 204, 591. Parmele v. Guthery, 392. Parrish v. Commonwealth, 209, 213. V. State, 176, 203, 395, 591. Parsons v. Commonwealth, 175, 192. v. State, 38. Partce v. State, 559. Pate >:. State, 351. Patillo V. State, 178, 187. Patten v. People, 173, 176, 204, 207, 208. Patterson v. Arnold, 355. V. People. 1"7, 373, 521, 536. V. State, 143, 144, 232, 457, 459. Pattison, Ex parte, 323. Paul V. State, 541. Payne v. Commonwealth, 176, 457, 569. V. State, 240, 243, 428, 430, 579. Peak V. State, 441. Pearson's Case, 155, 231, 233, 236. Peck V. State, 178, 190. Peden v. State, 129. Peebles v. Horton, 346. Peiffer v. Commonwealth, 404, 405. Pelham v. Page, 410. Penland's Case, 178, 190, 191. Pcnn V. State, 378, 472. Pennsylvania v. Bell, 277. r.' Lewis, 26, 139, 164, 231, 235. V. McFall, 243, 245. TABLE OF CASES. Xli Pennsylvania v. Robertson, IG. Penrod v. People, 304. People V. Abbott, 440, 443, 551, 552. 0. Adams, 6, 34, 42. V. Ah Ciioy, 471. V. Ah Dat, 440, 444. V. Ah Fat, 35, 312. V. Ah Fook, 341, 345. V. Ah Fung, 509. V. Ah Hop, 310, 347. V. Ah How, 545. V. Ah Kong, 88, 536. V. Ah Ping, 128. V. Alivitre, 428, 431, 432. V. Alviso, 372, 373, 540. V. Anderson, 174, 194, 195, 427, 441, 456. V. Arnold, 536. V. Aro, 2, 34, 65, 298. V. Austin, 29, 67, 139, 177. V. Badgely, 546. V. Baird, 386, 388. V. Barker, 523. V. Barric, 547, 549, 550. V. Barry, 80, 174. V. Batchelder, 174. V. Bealoba, 103, 104, 106, 109, 127,376, 531, 532. V. Beauchamp, 382. V. Beckwith, 103, 105, 107, 112, 113, 539, 540, 541, 566, 570. V. Belencia,65, 76, 99, 239, 242, 244, 250. V. Bell, 528. V. Bemis, 290. V. Bennett, 274, 275, 539, 540, 546. v. Best, 582. V. Bezy, 102, 456. V. Biggings, 174. V. Boggs, 593. V. Bonilla, 283. V. Bonney, 404, 535, 587. V. Bowe, 328. V. Bradner, 351, 352, 354, 440. V. Brady, 453, 455. V. Brock, 268. V. Brown, 129. V. Buddensieck, 164. V. Budge, 206. V. Burke, 47. V. Burns, 548. V. Burt, 158, 258. V. Bush, 71, 76, 174, 202, 534, 535. V. Campbell, 174, 203, 278, 429, 591. People V. Carkhuff, 437. - V, Carpenter. 402. V. Cassiano, 250. V. Cavanagh, 239. V. Charles, 376. V. Chin Mook Sow, 440. V. Clioiser, 290, 293. V. Chung Lit, 587. V. Cignarale, 563, 570. V. Clark, 30, 32, 70, 168, 387, 400. V. Cochran, 174. V. Cole, 157, 161, 177, 317, 321, 322, 327. V. Colt, 290, 291. V. Conley, 300. V. Conroy, 75, 527. I'. Cook, 35, 176, 220. V. Corbett, 351. V. Cornetti, 103, 113. V. Costello, 557, 558, 559. V. Cotta, 103, 104. V. Cotteral, 30. V. Coughlin, 176, 208, 407, 479, 536. V. Courtney, 559. V. Cox, 276, 289, 298, 300, 303. V. Cronin, 65, 290. V. Crowey, 72, 139. V. Crowy, 140. V. Cuintano, 272. V. Cummins, 239, 249. V. Cunningliam, 322. V. Curling, 29. V. Curtis, 462. I'. Damon, 392, V. Dane, 342. V. Davis, 277, 283, 285, 441, 443, 557, 559. V. Deacons, 95, 96, 103, 107, 112, 479, 528, 539, 541. r. De La Cour Soto, 279. V. Divine, 68, 212, V. Dixon, 316. V. Doe, 16, 18, 65, 176. V. Dolan, 279, 280, 287, 310, 392. V. Douglass, 410, 411. r. Dowd, 209. V. Doyell, 65, 118, 119, 121. V. Draper, 408. V. Driscoll, 496, 497. V. Drury, 267. \. Druse, 457, 459, 460, 479, 544, 548. V. Dunn, 278, 389. I', Eastwood, 248. xlii TABLE OF CASES. People V. Enoch, 279. V. Estrado, 555, 576. V. Evans, 558. 17. Everhardt, 402, 559. V. Fernandez, 528. V. Ferris, 239, 250. V. Finley, 230, 231, 239, 538. V. Fisher, 387. V. Flanagan, 212, 213. V. Foley, 407, 468, 479, 480, 481, 482, 523, 524. V. Fong Ah Sing, 443, 573. V. Folmsbee, 328. V. Foren, 99. V. Free, 1, 32, 139, 140. V. Freeland, 144, 304. r. Frost, 3(57. V. Fuller, 97, 1G2, 164, 165, 246, 367. V. Gaines, 351. V. Garbutt, 232, 234, 239, 246, 428, 456, 483, 537. V. Gardiner, 264. V. Garvey, 555. V. Gates, 554. V. Gatewood, 174, 203, 273. V. Geiger, 491. V. Gelabert, 547, 556. V. Genet, 128. V. Giancoli, 261, 279, 470, 582. V. Gibson, 76, 536. V. Giesea, 367. V. Gill, 34, 44, 45, 65. V. Gleason, 268. v. Glenn, 420, 440. r. Gonzales, 174, 202, 204, 280, 582, 586. ... Goodwin, 320, 324, 327, 329. V. Goslaw, 563, 569. V. Gray, 408, 410, 440. V. Green, 441, 556. V. Grigsby, 118. V. Grunzig, 441. V. G nance, 103. V. Hall, 421, 526. V. Ilaniblin, 103. V. Hainniill, 231, 232, 245, 483. V. Harper, 177, 203. V. Harriden, 544. V. Harrington, 375. V. Harris, 240, 242, 244, 400. V. Hartnng, 41o. V. Haun, 65, 98, 99. i;. Haynes, 275. V. Hennessey, 546. People V. Herbert, 174. V. Herrick, 30. V. Hodgdon, 440, 444. V. Hong Ah Duck, 290, 535. V. Honshell, 30, 31, 213. V. Horton, 155, 157, 208, 210. V. Howell, 373. V. Hurley, 17, 174, 203, 230. V. Hurtado, 155. V. Hyler, 316, 322. V. Jaehne, 546. V. Jamarillo, 141. t). Jefferds, 321, 329. V. Jenness, 558. i;. Jim Ti, 547. r. Johnson, 32, 547, 556. V. Jones, 237, 239. V. Judd, 294. V. Keefer, 31, 128. V. Keenan, 347, 348, 349. V. Kelley, 2, 555. V. Kelly, 34, 298, 576. V. Kemmler, 434, 523. V. Kennedy, 386. V. Kern, 519. t'. Kiernan, 105, 107. 1-. King, 232, 242, 244, 287, 290. V. Kirby, 30, 77. V. Kleim, 227. V. Knapp, 40, 441. V. Knickerbocker, 441. V. Kohler, 376. V. Lachanais, 581. V. Lake, 526. V. Lamb, 81, 174, 177, 187, 189, 201. V. Lambert, 546. V. Lane, 541, 546. V. Langton, 231, 235 V. Laurence, 438, 533. V. Lee, 273, 389, 890, 440, 443, 594. V. Lee Chuck, 426, 430. V. Lee Fat, 375. V. Lee Sare Bo, 410, 453, 454. V. Leith, 40. V. Lennox, 357, 358. V. Lewis, 2.32, 242, 435. V. Lilly, 176, 204. V. Lloyd, 279, 286, 287, 289. V. Lockwood, 304. V. Lohman, 317. V. Lombard, 427, 456. V. Lyons, 499, 500, 563, 570. V. Majone, 72, 75, 103, 107, 112. V. March, 77, 80, 139, 140, 591. TABLE OF CASES. xliii People r. Marquis, 591. V. Martin, 05. V. Mather, 258. V. McCann, 538, 560. V. McCarthy, 3U9, 310, 438, 530. V. McCoy, 353. V. McCraney, 264. V. McCrory, 354. V. McCurdy, 205, 266, 505. V. McDonell, 538. V. McDonnell, 311, 538. V. McDowell, 309. V. McFall, 544. V. Mclntyre, 373. V. McKay, 410. V. McLaughlin, 444. V. McLeo(],20,21,66, 177,192,263, 317, 320, 325. V. McMahon, 548, 552, 554. V. Mellor, 265. V. Milgate, 77, 139, 140. V. Millard, 421. V. Miller, 258, 383. V. Moan, 35, 457, 458, 459. V. Moice, 272, 339. V. Mondan, 548. j;. Montgomery, 404. V. Moore, 65, 105, 582. V. Morine, 174. V. Murback, 144. t'. Murphy, 556. V. Murray, 279,286, 416, 417, 457. V. Myers, 536, 561. V. Navis, 550. V. Nichol, 127, 246. V. Noll, 358. V. O'Brien, 557. V. O'Connell, 239. V. Odell, 239, 242, 244, 247. V. Ogle, 470, 471. V. Olmstead, 58, 441, 528, 529. V. Ohvell, 358. V. O'Xeil, 388, 400. V. Ormsby, 380. V. Palmer, 539, 540, 541. V. Parton, 547. V. Payne, 174, 194, 195, 213. V. Penhallow, 387. V. Perdue, 174, 328. V. Perkins, 379, 382. V. Perry, 317, 320, 327, 441. V. Phillips, 548. V. Pine, 232. V. Pool, 65, 216, 510. V. Porter, 232, 237. People V. Potter, 100, 465. i;. Quin, 583. V. Quincy, 582. V. Ramirez, 440, 453, 455. V. Katen, 535. . V. Rector, 101, 205. V. Reich, 564, 509. V. Restell, 555. V. Reynolds, 402. V. Robertson, 174, 179, 202. V. Robinson, 231, 232, 235, 236, 242, 245, 251, 301, 302. V. Rogers, 231, 232, 235, 236, 239, 243, 245, 246, 248, 250, 469, 551. V. Rugg, 591. V. RuUoff, 388. V. Ruloff, 546. V. Ryland, 557, 558. V. Sanchez, 84, 155, 157, 440. V. Sanford, 301,527. V. Santvoord, 257. V. Schn)idt, 283. V. Schryver, 206. V. Schuyler, 525, 526, 536. V. Schweitzer, 558. V. Scoggins, 174, 190, 429. V. Scott, 174, 196, 199. V. Sessions, 169, 309, 310. V. Shafer, 405. V. Shattuck, 317, 325, V. Shay, 80, 90. V. Sheriff, 104, 167. V. SherifE of Westchester Co., 97. V. Shorter, 177. V. Shufelt, 366. t'. Simonds, 531. V. Simons, 174, 181, 202. V. Simpson, 441, 443. V. Sing Lum, 375, 376. V. Skeehan, 103, 107, 114. V. Smith, 388, 421, 501, 502, 647, 555. V. Soto, 555. V. Special Sessions, 388. V. Stanley, 556. V. Steventon, 65, 289, 290, 294. I'. Stewart, 483. V. Stock, 457. I'. Stockham, 372. V. Stone, 574, 588. V. Stonecifer, 174, 201, 499. V. Sullivan, 17, 74, 75, 106, 166, 177, 203. V. Taing, 428. xliv TABLE OF CASES. People V. Tamkin, 174. 190, 191. V. Taniiaii, 177, 203. V. Taylor, 07, 440, 472. V. Thorns, 548. I'. Thrall, 545. V. Thurston, 274, 275, 521, V. Tidwell, 336. r. Tinder, 317, 325. V. Travis, 17. V. Trim, 30, 381. V. Turcott, 434. V. Turley, 144, 147, 149, 153. V. Tyler, 44. V. Urias, 283, 285. V. Vail, 376. V. Van Brunt, 72. V Vance, 283, 287, 389. V. Van Home, 310, 321, 325. V. Van .Steenburgh, 106. V. Vasquez, 129. V. Vernon, 440. t'. Wallace, 276, 289, 298, 300, 303. V. Walsh, 174, 208, 210. V. Walter, 579. V. Warren, 273. V. Welch, 343, 582. V. Wentz, 548, 549, 550, 552. V. Westlake, 174, 181, 191, 202, 636. V. Whipple, 557. V. White, 277. V. Willett, 279. V. Willey, 232. V. Williams, 174, 231, 235, 239, 242, 244, 245, 246, 248, 250, 427, 523, 524, 5-32, 543, 582. V. Willson, 523, 525, 563, 564, 570. V. Wilson, 308, 421, 528, 529. V. Wolcott, 548, 549. V. Wong Ah Teak, 174, 202. V. Woods, 396. V. Woody, 127, 128, 569. V. Wreden, 527. V. Wynian, 472, 557. V. Ybarra, 289, 440, 443. Peoples V. Commonwealth, 440, 451, 454. Peri V. People, 09, 105. Perkins (;. Guy, .342, 343. V. State, 275, 475. Perry, In re, 318. V. State, 65, 141, 142, 536, 537. Perryman v. State, 304. I'erteet t'. People, 331. Peter y. State, 87, 158, 159. Peterson v. State, 280, 290, 293, 311, 363, 394, 556. Petite t'. People, 341, 346. Petty V. State, 118. Pfomer v. People, 177, 583. V. State, 188. Phadenhauer v. Germania Life Ins. Co., 50. Pharr v. State, 104, 106, 107, 118, 128, 178, 476, 478, 576. Phelps r. State, 76, 133. Philips r. Commonwealth, 176, 204, 207. V. Louisiana Equitable Life Ins. Co., 50. Phillips V. Commonwealth, 17. V. State, 126, 130, 425, 462, 518. Pickins v. State, 84, 91. , Pickett V. Legerwood, 356. . Pidcock V. Potter, 527. Pierce v. State, 239, 301. Pierson v. People, 388, 517, 523. V. State, 174, 203, 334, 343, 344, 582. Pigman v. State, 235, 240, 242, 247. Pinkard v. State, 126. Piper V. Menifee, 26. Pirtle V. State, 231, 232, 235, 240, 243, 245, 248, 250. Pistorius v. Commonwealth, 177. Pitman v. State, 429, 461. Pitts i: State, 425, 540, 546, 563, 569. Plusters V. State, 178, 458, 459, 460. Pliemling v. State, 125. Plummer's Case, 162. V. Commonwealth, 128. V. State, 226, 227, 311. Pocket V. State, 243. i Poe 1-. State, 565, 568, 570. Pogue I'. State, 565. Poiudexter v. Commonwealth, 392. j Polin V. State, 504, 527, 560, 569. I Pond V. People, 12, 13, 172, 173, 176, 187, 203, 204, 207, 208, 209, 215, 220. Poole V. State, 286. Pope V. State, 411. Porter v. State, 547, 549, Portland v. Bangor, 388. Poteete t'. State, 158, 159. Potsdamer v. State, 393. Potsdamery v. State, 391. Potter V. State, 579, 580. Potts V. House, 527. Pound I'. State, 17, 456, 457, 499, 500. TABLE OF CASES. xlv Powell V. Gott, 355. V. State, 426, 429, 519, 527. V. United States, 351. Powers V. State, 142, o52, 440, 475, 558. Presley v. State, 106, 109. Pressley v. State, 582. Preston v. State, 144, 491. Preuit I'. People, 77. Price v. Commonwealth, 341. V. State, 222, 379, 382, 383, 421, 548, 554. Priest V. State, 479, 483, 540. Primus v. State, 104, 127. Prine v. Commonwealth, 351 375,376, 379, 380, 383. Prior V. State, 501. Pritchett v. State, 174, 426. Proctor V. De Camp, 342, 343. Proofer v. Reg., 420. Prooper v. Reg., 409. Puett V. Beard, 352. Pugh V. State, 237. Purinton v. Humphreys, 411. Parley v. State, 102. Puryear v. Commonwealth, 290, 294, 341, 391, 433, 442, 454. V. Reese, 526. Q. Quaife v. Chicago & N. W. R. Co., 526. Queen v. Carden, 266. V. Jacobs, 542. V. O'Connell, 356. Quinn v. State, 405. R. Radford v. Commonwealth, 583, 586. Rafe V. State, 547. Rafferty v. People, 92, 232, 239, 242, 246, 331. Rakes v. People, 441. Rambler v. Try on, 526. Ramscar, In re, 267. Randolph v. Commonwealth, 271. Randon, Ex parte, 318, 319. Ex parte, 326. Rapp 17. Commonwealth, 144, 176, 427. Rash V. State, 528. Rasnick v. Commonwealth, 126. Ratcliff's Case, 336. Rather u. State, 231, 235, 283, 538, 565. Ray V. State, 80, 149. Rea V. State, 583. Read v. State, 342, 347. Ready v. Commonwealth, 317, 318. Real V. People, 232, 247. Record i'. State, 363. Rector i'. Commonwealth, 548, 549. Redd V. State, 290, 293, 461, 464, 472, 474, 547, 549, 552, 553. Redus V. People, 279, 283, 285, 286, 582. Reed v. Harper, 232. V. State, 87, 155, 159, 160, 277, 304, 306, 307, 526, 372. Reeves v. State, 274. Reg. V. Alison, 52, 53, 54, 55, 57, 61. V. Allen, 97. V. Andrews, 320, 323, 588. I'. Archer, 97, 157, 164. V. Bannen, 42. V. Barrett, 164. V. Barronet, 316. V. Barthelemy, 316, 320, 32L V. Beckwith, 588. V. Bedingfield, 442, 449. V. Bennett, 2, 61, 373. V. Bird, 42. I'. Blackburn, 136. t'. Blake, 126, 482. V. Bond, 373. V. Bowen, 29. i\ Brown, 418. V. Bull, 12, 42. V. Burgess, 49, 60. V. Campbell, 97. V. Caton, 161. V. Caudwell, 384. r. Chapman, 320. V. Clewes, 551. V. Clifford, 127. V. Coulter, 399. V. Crook, 27. V. Croydon, 552. V. Cruse, 40, 246, 247. V. Dadson, 10, 13, 215. V. Dalmas, 442. V. Dant, 42. V. Davis, 250. V. Doody, 60, 241, 243. V. Dorlie, 3. V. Dowling, 394. r. Drew's Case, 550, 551. V. Dudley, 19, 223. V. Dugal, 3. V. Errington, 162. xlvi TABLE OF CASES. Reg. V. Fellows, 126. V. Fenety, 68. V. Fisher, 71, 80. V. Fletcher, 35. V. Fretwell, 59, 61. V. Frost, 542. r. Gamlen, 230, 236, 241, 246. t;. Garner, 552. V. Garrett, 47, 48. r. Gaylor, 57, 58, 60, 168. V. Geach, 29. V. Goddard, 449. V. Greenwood, 41. V. Gray, 163, 164. V. Hagan, 215. V. Haines, 29, 163. V. Hai-rington, 207. V. Hearn, 552. V. Hewett, 552. V. Hilliday, 3. V. Hinks, 482. V. Hopley, 169. V. Howell, 29, 40, 442. V. Hubbard, 442. V. Hughes, 163. V. Hunt, 420. V. Hutchinson, 97. V. Jenkins, 442. V. Jessop, 52, 53. V. Jones, 97, 164. V, Kelley, 155. V. Kerr, 392. V. Kirkham, 74, 92. V. Lallement, 31. V. Laugher, 552. V. Layton, 538. V. Leddington, 56, 57, 58, 60. V. Ledger, 35. V. Longbottom, 35. V. Lowe, 163. V. Luckhurst, 549. I'. Manlcy, 42. V. Manning, 136, 137. V. Martin, 4, 164. V. Mawgridge, 31. V. Mnzeau, 127. V. McCanohy, 372. V. McDowell, 81. V. McLeod, 26. V. McMahon, 449. V. Mi'gson, 442. V. Michael, 34, 42,43, 127. V. Monkhouse, 243, 240. V. Mooney, 442. I'. Morgan, 442. Reg. V. Moore, 241, 243, 247, 259, 550, 551. V. MuUady, 324. V. Murphy, 355. V. Nichols, 442. V. Noakes, 25. V. Packard, 162. V. Pargeter, 163. V. Peel, 442. V. Perkins, 443. V. Pocock, 2, 5, 40. J!. Price, 40. V. Pym, 35. V. Qualter, 442. V. Reaney, 442. V. Reason, 554. V. Regan, 30. V. Reno, 283. V. Rowtow, 487. V. Scott, 555. I'. Selten, 76. V. Sinclair, 61. V. Skeet, 40, 164. V. Slaven, 126. V. Smith, 81, 145, 442. ; V. Sparham, 442. V. Spence, 163. V. Spilling, 27. V. Steele, 442. V. Stokes, 538. V. Stubbs, 588. V. Swindall, 35, 97. V. Taylor, 97, 98, 266, 550, 552. V. Thomas, 442. V. Thurborn, 23, 189. V. Towers, 41. V. Trilloe, 6. V. Turner, 11. V. Tyler, 127, 225. V. Valler, 42. V. Whitehead, 27. V. Wliitworth, 442. V. Winegarner, 275. V. Wright, 7. Rehberg v. Mayor, 341. Rcid, V. State, 126, 536. V. Strider, 356. Reins v. People, 404. Reneau v. State, 11, 159, 216. Rennie's Case, 2.33, 248. Respublica v. McCarty, 556. V. Mulatto Rob, 104, 107, 116, 189. V. Weidle, 233. Revel, V. State, 67, 591. Ilex V. Alison, 56. TABLE OF CASES. xlvii Rex V. Appleby, 482. V. Ashee, 60. V. Batt, 29. V. Bennett, 5. V. Berriman, .304. r. Bishop, o28. V. Bisliop of Rochester, 329. V. Bonner, 443, 444. V. Brain, 6. V. Brisac, 42. V. Brooks, 274. V. Burtlett, 45. V. Carr, 2, 5, 97. v. Carroll, 232, 23.3, 236, 245, 246. V. Carter, 320. V. Cheeseman, 169. V. Christie, 444. V. Clewes, 557. V. Collison, 40. V. Conner, 31. V. Cooper, 42, 134, 550. V. Court, 550. V. Cox, 29. V. Crockett, 442, 444. V. Danby, 317. V. Davis, 29. V. Delaniere, 316, .321. V. Dixon, 29. V. Dyson, 52, -54, 57. V. Enoch, 7, 552. V. Fagent, 444. V. Fearnley, 274. I'. Fitzgerald, 3-30. V. Gibbons, 552. V. Giles, 127. V. Giiham, -551, 554. V. Giilow, 29. V. Gordon, 134. V. Green, 97, 163. V. Grey, 28. V. Griffin, 5.52. V. Grindley, 2.33. V. Hargrave, 4-5, 302. V. Harris, 173. r. Hazel, 1. V. Hay ward, 70, 72, 442, 444. V. Higgins, 316, 317, .320, .321. V. Hodgson, 24. V. Holt, 31. • V. Hucks, 421. V. Hughes, 61. V. Hull, 162. V. Hunt, 30. V. Jenkins, 552. V. John, 442. Rex V. Johns, 420, 421, 44.3. ' V. Jones, 30, 46, 552. i>. Keite, 27. V. Kendal & Roe, 321. V. Lanibe, 544. V. Lancaster, 351. V. Lockett, 129. V. Lea son, 329. V. Leddington, 57. V. Long, 27, 97. I'. Longden, 17. V. Lord, .321. V. Lynch, 73, 74. V. Macdaiiicl, 43. V. Mackintosh, .329. V. Marks, 321. V. Martin, 162. V. Mawgridge, 139. V. McDaniel, 36. V. McMakins, 40. V. Mead, 442. V. Meakin, 2,33, 243, 246, 248. I'. Mills, 551. V. Morgan, 321. V. Mosley, 296, 442, 443, 444, V. Murphy, 36, 40, 126, 162, 164. V. Norton, 304. V. Orrery, 329. V. Parratt, 551. 'V. Parsons, 126. V. Partridge, 552. V. Passey, 129. V. Pepper, 316, 321. V. Piatt, 329. V. Plumnier, 31. V. Poulton, 6. V. Pountney, 552. V. Reader, 328. V. Rigniaidon, 162. V. Robinson, .30. V. Russell, 56, 57, 58, 59, 61. V. Saltash, 328. V. Sawyer, -52. V. Schaife, 443. V. Scofield, 29. V. Scully, 17, 157, 189. V. Self, .36. V. Sellis, 7. I'. Senior, 27. V. Sexton, 551. V. Shellard, 126. V. Shepherd, 551. V. Simpson, 26, 27, 552. V. Spilsbury, 443. V. Spragg, 384. xlviii TABLE OF CASES. Eex V. Squire, 30. V. Stacey, 552. V. Standley, 129. V. Steptoe, 557. V. Streek, 379. V. Sullivan, 1G2. V. Svvatkins, 551. V. Taylor, 81. V. Thomas, 230, 232, 233, 235, 236, 242, 243, 245, 550. V. Thornton, 551. V. Tonilinson, 296. V. Townley, 274. V. Trimmins, 97. V. Turner, 482. V. Tye, 34. V. Van Butchell, 27, 97, 442, 443. V. Upchurch, 551. V. Warner, 549. r. Warickshall, 544. r. Webb, 34, 35. V. Welbourn, 420. V. White, 40, 336. V. Whithorne, 29. V. WiIliiani. Donnelly, 203, 205, 528, 583, 585. V. Donovan, 238. V. Doolittle, 372, 373. V. Dooley, 375. V. Dooly, 370, 384. V. Douglass, 07, 77, 81. V. Dowd, 105, 100, 591. V. Downham, 149, 153. V. Downs, 167, 176, 427, 428, 429. 457, 462, 578. V. Drake, 401. V. Draper, 144, 441, 446, 538. i;. Dufour, 471, 508. V. Dugan, 94, 208, 210, 226. V. Duniphey, 287, 392, 429, 457, 483. V. Dunkley, (!(!, 307, 308. V. Dunn, 72, 103, 105, 144, .588. V. Duvall, 283, 284, 286. V. Earnest, 106, 111. V. Easter, 272. V. Eaton, 176, 194, 283, 285, 298. V. Edmundson, 294. V. Edwards, 120, 123, 176, 231, 235, 239, 276, 465, 583. V. Efler, 544. V. Elkins, 376, 432, 457, 459. V. Ellick, 81, 82. V. Elliott, 176, 193, 420, 427, 440, 556. V. Ellis, 46, 120, 123, 144, 472. 473, 576, 583. V. Emery, 39, -55, 164. V. Epps, 351. v. Erb, 118, 119, 120, 122,576. V. Evans, 80, 404, 405. V. Everett, 388. t;. Fclter, 227, 404, 526, 538, 561. V. Felters, 520. V. Feltes, 526. ■ V. Ferguson, 77, 81, 429, 442. V. Ferris, 371. V. Field, 169, 4-58. V. Fields, 109, 275. r. Fisher, 394. 429, V. Fitzhue, 491. State V. Fitzhugh, 441, 456. V. Fitzporter, 168. V. Fitzsimmons, 149, 152. V. Flannigan, 593. V. Fley, 126, 128,312. V. Florenza, 283, 285. V. Floyd, 155, 457, 583. V. Foley, 346. V. Fong Ah Sing, 573. V. Fooks, 283. V. Ford, 382, 457, 460, 464. V. Forney, 283, 284, 285. V. Forsythe, 212, 341. V. Foster, 103, 592. V. Fowler, 556. V. Fox, 290, 291. V. France, 155. V. Frank, 404, 405. V. Fravier, 438. V. Frazer, 583. V. Frazier, 439. V. Fredericks, 550, 554. r. Freeman, 258, 274, 290, 292, 442, 548. V. Frink, 328. V. Fuentes, 144. V. Fulkerson, 31. V. Gardiner, .304, 544, 547. V. Gardner, 103, 105. r. Garie, 176. V. Garrand, 103, 107, 114, 441. V. Garrett, 10, 21-5, 216. I'. Garvey, 235, 245, 246, 247, 548, 555. V. Gary, 274. V. Gaskins, 149. V. George, 302, 569. V. German, 54(i. r. Gessert, 45, 261, 301, 302. V. Gillick, 80, 438, 472, 536, 583. V. Gilman, .30, 94, 508, 555. r. Glass, 58, 168. V. Glidden, 193. V. Godfrey, 405. V. Good), 75. V. Goodenow, 30. V. Goodrich, 432. r. Gossett, 548, 551, V. Gould, 290, 291, 413. r. Graham, 457, 506, 507. V. (Jrant, 310, 311, 461, 548, 586. V. Grate, .381, 483. V. Graves, 345. t'. Graviotte, 232. V. Grayer, 70, 73, 501, 502. TABLE OF CASES. liii State V. Grear, 77, 239. t;. Green, 103, 107, 111, 119, 126, 4G1, 517. V. Greer, 178, 207, 375. V. Gross, 4oi. V. Griffin, 142, 315, 344. V. Guidry, 395. V. Guild, 544, 546, 548, 549, 550. V. Gut, 21, 60, 154, 219, 232, 245, 246, 250, 552. V. Guy, 428, 429, 461,-462, 551. V. Hagan, 548, 549. V. Halida, 278. V. Hall, 429. V. Halsted, 280. V. Hamilton, 118, 119,121,341. . V. Hamlin, 286, 310. V, Hammond, 125. V. Haney, 298, 300, 301. V. Hanley, 395. V. Hannah, 441. V. Hardie, 39, 55, 97, 164, 106. V. Hardin, 573. V. Hardy, 176. 17. Hargctt, 90. V. Harlow, 231, 232, 239, 245. V. Harman, 155, 204, 221, 222, 547. V. Harmon, 177. V. Harper, 441. f. Harris, 13, 89, 103, 107, 176,177, 188, 276, 283, 285, 307, 413, 414, 420, 427, 436, 437, 457, 471. V. Harrison, 565, 570, 583. r. Hart, 232. V. Hartnett, 259. V. Hartwell, 317. V, Harvell, 257. V. Harwood, 315. V. Hawks, 255. V. Hayes, 583. V. Hayden, 457, 525, 526, 527. V. Hays, 67, 80, 105, 336, 429. V. Haywood, 227. V. Hennessey, 559. V. Hensley, 75. V. Henson, 94, 294, 298. V. Herdina, 239. V. Hernandez, 394. V. Heyward, 127, 128. V. Hicks, 103, 176. V. Hildreth, 461. V. Hill, 13, 16, 75, 76, 81, SG, 103, 105, 107, 111, 118, 177, 202, 316, 317, 322, 326. State V. Hinkle, 475, 476, 517, 523, 524. V. Hobbs, 257, 298, 300. V. Hockett, 80, 142, 227, 456, 457, 525, 592. V. Hogue, 81, 82, 456, 458. r. Holcomb, 472. V. Holland, 557, 558. V. HoUensclieit, 556, 557. V. HoUis, 187. V. Holme, 77, 103, 105, 155. I'. Holong, 283. V. Holt, 388. V. Hooper, 255. V. Hoover, 1, 5. V. Huber, 591. V. Hudson, 176, 201. V. Huff, 298, 300. V. Huggins, 298, 300. V. Hughes, 259. V. Hundley, 239, 245, 248, 538, 561. V. Huntle^', 232, 544. V. Hurlbut, 382. V. Hurley, 231, 236, 239, 274, 538. V. Huting, 227. V. Huxley, 248. V. Hyer, 557, 558, 559. V. Hymer, 461, 462, 463. V. Hopkirk, 103, 106, 111, 548, 549, 554. V. Hopper, 111, 255, 259. V. Home, 175, 191, 241, 242. V. Hornsby, 404. V. Horskin, 208. V. Horton, 315. V. Houser, 528. V. Houston, 273, 314. V. Howard, 420, 472, 548, 558. V. Howell, 85, 395, 573. V. Hoyt, 80, 81, 103, 107, 110, 157, 272, 294, 348, 349, 461, 462, 463, 464, 465, 520, 538. V. Ingold, 177, 203, V. Ingram, 554. V. Isaacs, 556. V. Jackson, 126, 274, 342, 303. 394, 429, 457, 459, 563. V. Jacobs, 145, 171, 506, 583. r. Janvier, 429, 457, 459. V. Jarrot, 30. V. Jarrott, 67, 128. I'. Jefcoat, 380. V. Jefferson, 544. V. Jenkins, 288, 289, 294, 312, 314. V. Jennings, 103, 105, 573. liv TABLE OF CASES. State V. Jewell, 397. V. John, 155, 232, 246. V. Johnson, 31, 01, 77, 81, 91, 118, 139, 107, 176, 203, 232, 235, 239, 240, 245, 250, '251, 283, 286, 347, 353, 363, 404, 440, 441, 454, 463, 477, 495, 501, 536, 556, 564, 565, 569, 576, 583, 585. V. Jefferson, 552. V. Jones, 67, 98, 99, 103, 119 177, 229, 286, 294, 340, 376, 377, 384, 521, 522, 536, 537, 554, 558, 560, 563, 570. V. Kane, 298, 299, 351, 363. V. Kaufman, 288. V. Kearley, 103, 107, 110. V. Keath, 239. V. Keeler, 540. V. Keene, 176, 427, 457. V. Kellerman, 558. V. Kelly, 391. V. Keneston, 280. V. Kennedy, 12, 13, 157, 172, 173, 175, 196, 204. V. Kilgore, 105, 290, 291, 441, 575. V. Kitty, 548. V. King, 13. V. Kirby, 550, 555. V. Klinger, 394, 527, 538, 561. r. Knight, 70, 77, 139, 140, 336, 372. V. Knowles, 546. V. Kotovsky, 118, 120, 123, 576. V. Kring, 346, 359, 360, V. Labuzan, 457, 459. V. Lakey, 303. V. Lamb, 546. V. Lambert, 495. V. Lamon, 301, 302. V. Landgraf, 35. V. Lane, 75, 76, 00. V. Langfonl, 370. V. Lautcnsehlager, 31, 290, 291. r. Lawler, 519. V. Lawlor, 519, 5.33. I'. Lawrence, 538, 56L V. Lay, 281. V. Learned, 550. V. Leabo, 583, 584. V. Leak, 84. V. LeBlanch, 47. V. Lee, 342, .346, 427. V. Leei)cr, 118, 120, 122, 280, 281, 440, 488. State V. Leobe, 399. V. Leonard, 144. I'. Lessing, 98, 100, 286, 593. V. Levigne, 149, 150. V.Lewis, 118, 120, 122, 123, 368, 370, 546, 573. V. Lincoln, 304, 305, 306. V. Linney, 176, 201, 348. V. Lipsey, 105, 144. V. List, 149, 152. V. Litchfield, 558, 559. V. Lockwood, 388. V. Long, 274, 275. V. Lopez, 103, 107. V. Lowe, 283, 285. V. Lowhorne, 548. V. Ludwig, 55, 56, 57. V. Lyons, 274, 388. V. Madoil, 404. V. Mahan, 103, 175, 194, 523, 528, 583. V. Mahly, 103. V. Malin, 500. V. Mahon, 107, 556, 557. V. Mallon, 347. V. Manluff, 278. V. Mansfield, 388. r. Marler, 538, 557, 561. V. Marsh, 118. V. Marshall, 555. V. Martin, 75, 76, 178, 250, 469, 538, 556, 561. V. Massage, 155. V. Mathes, 441, 450. V. Matthews, 34, 86, 177, -341, .376, 427, 457, 458, 555. V. McCahill, 129. V. McCanon, 441, 444. I'. McCants, 70, 71, 130, 240, 243, 247, 461, 462, 491. V. McClear, 387, 401. V. McCluer, 569, 571. V. McCormick, 286, 583. V. McCoy, 427, 538, 561. V. McDaniel, 86, 290, 291, 298, 29!). V. McDonald, 212, 392. V. McDonnell, 70, 81, 156, 157, 479, ,556, 581. V. McEvoy, 442, 444. V. McCaffin, 286. V. McGinniss, 259. V. McGonigal, 232, 239, 247, 248, 2.50. V. McGray, 37. TABLE OF CASES. Iv State V. McGreer, 188. V. McKee, 404. V. McKinney, 589. V. McLaiie, 290, 273. V. McLaughlin, 555. V. McLendon, 363, 372. r, McNal), 101, 310, 321. V. McNally, 92, 103, 107, 112,429. V. McNeill, 144. V. Mcaker, 373. V. Medlicott, 440, 444. V. Medliii, 177. V. Meinhart, 275. V. Melton, 72, 103, 107, 111. V. Merrill, 30, 81, 177, 484. I'. Meshek, 341. V. ]\Iewherter, 227. V. Middleham, 175, 196, 204, 205, 528, 529. V. Mikle, 475. V. Miller, 103, 508. V. Millian, 279. V. Mills, 320, 322, 441, 548. V. Mitchell, 30, 77, 105, 479, 481, 482. V. Merrill, 144. V. Moelchen, 436, 437, 483, 501. V. Montgomery, 94. V. Moore, 29, 57, 58, 70, 73, 168, 169, 212, 213, 214. V. Moran, 133, 134, 534, 535, 558, 591. V. Morea, 35, 37, V. Morgan, 157, 289, 524. V. Morphy, 118, 120, 122, 411. V. Morris, 513. V. Morrissey, 7, 290. V. Morrison, 278. V. Moser, 280. V. Moses, 294. V. Mowry, 216, 227, 231, 235, 238, 239, 243. V. Mullen, 66, 80, 83, 176, 194, • 195, 232, 239, 245. V. Munch, 275. V. Murph, 390. V. Myers, 126. V. Nash, .332, 438, 440, 443, 469, 472. V. Neeley, 160, 175, 182, 201, 283, 284, 285. V. Nelson, 488, 548. V. Nett, 458. V. Neuner, 400. V. Neville, 155. State V. Newcomb, 187. V. Newhouse, 441, 449. I". Newlin, 527. V. Newton, 81. V. Nixon, 227, 229. V. Norris, 74, 139. V. Neeley, 175, 182. V. Nueslein, 103, 107, 111, 569, 571. V. Nugent, 416, 461. V. O'Brien, 163. V. O'Connor, 176. V. Odell, 558. V. Oehlchlager, 357. V. O'Hara, 118, 120, 122. V. Oliver, 158, 216, 443, 496. V. O'Neal, 155, 312. V. O'Neil, 118. V. O'Niel, 118, 119, 121, 276. V. Orrell, 2, 34. V. Ostrander, 548, 569, 597. V. Ott, 376. r. Outerbridge, 301, 302. V. Outs, 382. V. Owen, 91, 289, 294, 295, 683. V. Page, 348. V. Pagels, 227. V. Parker, 290. V. Partlow, 67, 87, 155, 156, 202, 203, 205, 441, 443, 449, 461, 548. V. Patten, 578. V. Patterson, 30, 206, 208, 367, 442, 541, 546, 548, 549, 552. V. Patza, 510, 512. V. Paulej% 45, 261. V. Paulk, 231, 240, 248. V. Payton, 94, 103, 107, 112, 290, 312, 313, 314. V. Peace, 441. V. Peacock, 208. V. Peak, 176, 201. V. Pearce, 456, 457. V. Peniberton, 307. V. Perigo, 80, 83, 175, 196, 198, 202, 280, 331, 499, 500. V. Perkins, 550. V. Perry, 496. V. Peterson, 274, 387. V. Phelps, 283, 284, 285, 548, 549, 554. V. Phil, 367. V. Phillips, 101, 134, 136, 470, 576. V. Pike, 84, 101, 239, 466, 527. V. Pitts, 232, 239. V. Polite, 298, 299. Ivi TABLE OF CASES. State V. Poll, 441. V. Porter, 569. V. Potter, 175, 194, 303, 456, 547, 557, 559, 591. V. Pratlier, 289. V. Pratt, 155, 538, 556, 561. V. Price, 441. V. Quarrel, 393. V. Quick, 442. V. Rainsbarger, 80, 503, 515, 517. V. Ramsay, 433. V. Ramsey, 149, 154, 294, 298. V. Rash, 461, 466. V. Ray, 359. V. Raymond, 31, 94, 95, 101, 387. V. Reckards, 379. V. Reddick, 560. V. Redemeier, 227, 5.38, 561. V. Reed, 315, 470, 556. V. Reidell, 227. V. Reilly, 346, 347. V. Revells, 548. V. Rheams, 149, 176, 203. V. Rhodes, 103, 105, 119, 142, 194, 195. V. Richards, 375. V. Ricks, 583. j;. Riddle, 348, 4-57, 4-59. V. Rider, 176, 196, 429, 441, 457. V. Riffe, 280. V. Rigshy, 548, 549. V. Rineliart, 289. V. Rippon, 384. V. Roane, 11, 13, 17, 97, 102, 164, 177, 215. V. Roberts, 155. t'. Robert's Case, 552. V. Robertson, 427. V. Robinson, 104, 107, 118, 119, 120, 240, 249, 2.50, 408, 413. r. Rockafellow, 316, 317, 321. r. Rogers, 175, 182, 196. V. Rollins, 403. V. Rose, 175, 176. V. Ross, 271, 420, 592, -595. V. Rover, 591. r. l^issell, 363, .557, 559. V. Rust, 257. V. Rutherford, 11, 12, 1.% 17, 18, 177, 215, 328. V. Ryan, 298, 300, 404, 429, 591. V. Sales, 314. V. Samuel, 155. V. Sanders, 294, 381, 471, 507. V. Satterwhite, State V. Saunders, 396. V. Schingen, 246. V. Schlagel, 558. V. Schmidt, 440, 449, 450. V. Schoenvvald, 67, 375, 376, 377, 569, 571. V. Scott, 85, 80, 191, 278, 283, 285, 443, 546. V. Seay, 47. V. Sharp, 105. V. Shay, 290. V. Shelledy, 38, 100, 159. r, Shelton, 175, 203, 286, 441, 447, 528. V. Shenton, 280. V. Shepherd, 277, 298, 461. V. Sliippey, 16, 17, 75, 76, 157, 176, 315. V. Shirley, 95. V. Shoultz, 103, 521, ^22. V. Shuford, 496, 498. V. Sides, 298, 300. V. Simmons, 11, 583. V. Simnis, 3-J9, 360, 561, 569. V. Simon, 441. V. Simpson, 371. V. Sizemore, 70, 71, 149. V. Slagle, 168, 282. V. Sloan, 176, 290, 310, 311, 427. V. Smalley, 278. i;. Smitli, 30, 31, 34, .35, 77, 91,94, 97, 139, 141, 176, 202, 239, 290, 293, 341, 342, 347, .359, 300, 376, 401, 458, 530, 536, 538, 5(>1, 504, .569, 595. r. Sneed, 72, 103, 107, 111, 244, 496, 579, 580. V. Soplier, 103, 106, 109, 231, 372, 396, 480, 548. V. Spangler, 118, 142. I'. Sparrow, 411. V. Spaulding, 92, 93, 427. V. Spell, 428. V. Spencer, 441, 538, 561. . V. Spores, 382. V. Squires, 548. V. Stackhouse, 528. V. Stair, 472, 474, 534. V. Stalcup, 40. V. Staley, 548, 554. V. Stanley, 175, 304. V. Stanton, .30, 31. V. Stark, 77, 139, 2-30, 232, .347, 520, 538, 583. V. Starling, 538. TABLE OF CASES. VH State r. Starr, 103, 160, 176, 193. V. St. Clair, 583. V. Stebbins, 557, 558, 559. V. Steeley, 303. V. Stephen, 509, 570, 575. V. Sterrett, 175, 402, 469,483,484. V. Stewart, 298, 429. V. St. Genie, 170, 193. V. Sticklejs 227. V. Stockton, 176. r. Stoeckli, 118, 575. V. Stokely, 100. V. Suggs, 544. V. Sullivan, 433. V. Summons, 317, 322, 327. V. Sundheinicr, 285, 298, 300. V. Sutton, 98, 274. V. Swayze, 77, 80. V. Sweeney, 275. I'. Swift, 176. V. Swink, 556. V. Ta-cha-na-tah, 77, 78, 91. V. Tackett, 144, 149, 151. r. Talbott, 532, 576. V. Tatro, 231, 232, 2-36, 240, 551, 552. r. Taylor, 257, 289, 291, 298, 300, 301, 302, 508, 535. V. Terrell, 531, 532. V. Testerman, 298, 300, 495. V. Thibeau, 479, 483. V. Thomas, 80, 239, 283, 285, 469, 536. V. Thompson, 12, 13, 14, 172, 173, 175, 184, 196, 204, 205, 2-32, 235, 239, 248, 250, 286, 366, 367. V. Thornton, .558, 559. V. Thraslier, 256. V. Thurman, 283. V. Tilghnian, 441. t'. Till, 118, 119, 121,2.39. V. Tilly, 91, 457, 476, 477. V. Tissing, 280. V. Toby, 363. V. Town, 77. V. Townsend, 118, 120, 122, 289, 291, 525. V. Trivas, 77, 250. V. Trout, 561, 569. V. Tucker, 404. V. TuUer, .393. V. Turner, 31, 67, 77, 99, 139, 232. V. Turpin, 427, 429, 432. V. Twiggs, 509. State V. Unrlerwood, .30, 80, 156, 176, 217,218,343, 347. V. Upham, 346. V. Upton, 411, 591. V. Vance, 97, 157, 102, 164, 165. V. Vandergraff, 555. V. Vansant, 441. V. Vatter, 396. V. Verrill, 276. V. Vincent, 430, 437, 523, 535, 5.36. V. Vines, 162, 164, 165, 187. V. Vogel, 393. V. Wagner, 84, 103, 105, 107, 260. t'. Walker, 67, 1.3-3, 134, 341, 418, 472, 473, 479, 515, 5.32, 544, 549, 550, 559, 569, 571, 583, 585. V. Waller, 294, .301, 302. V. Waltham, 341. V. Wamire, 379, 383. V. Ward, 80, 298, 300, 301, 328, 39.3, 394, 576. V. Waters, 363, 394. V. Watkins, 286, 517. V. Watson, 149, 341, 457, 459, 460, 557, 558, 559. V. Weasel, 482. V. Weese, 591. V. Welch, 30, 2.32, 239, 240, 242, 545, 555. V. Wells, 16, 84, 103, 107, 109, 176, 203. V. Wentworth, 461, 548. t;. West, 81, 82, 411, 515, 516, 521, 531, 536, 542, 557, 561. V. Westfall, 175. V. Whitaker, 286, 287. V. White, 232, 239, 245. I'. Whitetield, 548. V. Whitfield, 549. V. Wicks, 317, .325. V. Wieners, 103, 104, 107, 118, 576. V. Williams, 104, 274, 283, 285, 289, 290, 298, 347, .348, 420, 425, 429, 430, 431, 432, 540, 558. V. Willis, 81, 536. V. Wilson, 126, 382, 440. 576. V. Wimberly, 283, 285, 289. V. Winningham, 362. V. Wintzingerode, 516, 550. V. Wisdom, 84. V. Wise, 37.3. V. Witt, 304, .305. V. Wolcott, 658. Iviii TABLE OF CASES. State V. Wood, 36, 377, 442. t;. Woodward, 157. V. Wordcn, 388. V, Worthington, 556. r. Wyckoff, 47, 48. V. Yancry, 373, 593. V. Yarborough, 70, 72. V. Yarbroiigh, 149, 151. V. Yordi, 294. V. York, 548, 549, 550. V. Young, 508, 555. V. Zeibart, 312. V. Zellers, 30, 65, 139, 142, 161, 275, 508. V, Zule, 274, 275. Staten v. State, 13, 176, 207, 219, 222. Steele v. Commonwealth, 376. Steernian v. State, 201. Stephen v. State, 547, 552. Stephens v. People, 377, 384, 404, 410, 483, 484, 496, 517, 518, 523, 524, 546, 570, 583. V. State, 129, 354, 356, 531. Stevens v. State, 178, 227, 397, 438, 560. Stewart v. State, 13, 87, 149, 172, 173, 177, 196, 201, 271, 353, 366, 372, 401, 442, 461, 501, 513, 583. Stibbins v. Stibbins, 546. Stiff, Ex parte, 322. Stiles V. State, 67, 155, 174, 201, 202, 203. Stillwell V. Kellogg, 387. St. Louis & S. E. R. Co. v. Mathias, 341, 343,347. V. Myrtle, 347. St. Louis V. State, 517. Stocking V. State, 540, 557. Stockton V. State, 177. Stoffer V. State, 173, 177, 202. Stokes V. People, 30, 77, 99, 206, 429, 432. V. State, 81, 139, 141, 142, 150, 155, 505, 506, 507. Stone V. People, 294. V. State, 411. Stonehani v. Commonwealth, 189. Stoneman r. Commonwealth, 13, 178, 208, 210. Storey ;;. State, 212, 591. Story V. State, 175, 201, 213, 534, Stout V. People, 517. Strait V. State, 54(i, 548. Street v. State, 321, 326. Strickland v. State, 301. Stringfellow ;■. State, 546. Strode v. Stafford Justices, 356. Stuart V. People, 269. V. State, 240, 248. Stubbs v. State, 382, 383. Studstill V. State, 31, 97, 139, 143, 301, 372, 373, 374. Sturges V. Maitland, 97. Summers v. State, 29. T. Tabler v. State, 34. Tabor t'. Cook, 387. Tate V. State, 150. Tayloe, Ex parte, 139, 141, 317, 320. Taylor v. Commonwealth, 275, 358. V. State, 173, 190, 279, 363, 540, 579, 595. Teachout v. People, 555. Teal V. State, 17, 174, 189, 576. Teller v. Wetherell, 355. Temp V. State, 306. Tenorio v. Territory, 279, 290, 291. Terrell v. Commonwealth, 175, 202. Territory t-. Adolfron, 563, 564, 569. V. Ah Wah, 388. V. Baker, 176, 187. V. Bannigan, 71, 569, 570, 572. V. Benoit, 317, 320, 322. V. Big Knot on Head, 545. r. Calton, 144. V. Clayton, 404, 406, 476, 478, 569. V. ConncU, 231. r. Cotton, 235. V. Edmondson, 569. V. Egan, 67, 523. 533. V. Evans, 283, 286. V. Farrell, 546. V. Franklin, 236. V. Gay, 375, 379, V. Halliday, 283, 387, 428. V. Ilittick, 387. V. McAndrews, 536. V. Manton, 283, 284, 285, 570, 571. r. Mullii!, 317. r. O'DonnclI, 287. I'. Koinine, 84. V. Tunnell, 569. V. Yarberry, 375, 376, 591, V. Young, 290, 292. Terry v. McClin, 546. Tesncy v. State, 81, 173, 201. TABLE OF CASES. lix Tharpe v. State, 133, 134, Theal v. Reg., 278, 434. Thomas v. People, 81, 456, 457,459, 460, 483, 485. f. State, 90, 144, 274, 298, 300, 322, 32.3, 412, 417, 428, 475, 477, 528, 534. Thomason v. Territory, 429. Thompson's Case, 5.52. V. Commonwealth, 133, 312, 411, 549. V. State, 126, 149, 1-50, 174, 281, 317, 320, 347, 373, 440, 472, 473, 591. V. Territory, 431, Thuston V. State, 178, 201. Tickle V. State, 149, 153. Tidwell V. State, 35, 231, 235, 2.39, 250, 501, 502. Tiffany v. Commonwealth, 458, 570. Tillery v. State, 177, 193, 194. Tillman v. Ailes, 388. Timmerman v. Territory, 277, 540, 565, 568, 570. Tims V. State, 387. Tinckler's Case, 169, 444. Tindall v. State, 3.52. Tiner v. State, 158, 217. Tipton V. State, .556. Titus V. State, 288, 413, 415. Tompkins v. State, 126. Toney, Ex parte, 355. Tooney v. State, 84, 104, 107, 117, 128, 475. Tow V. State, 491, 532, 533. Tracy ;.•. People, 440. Trammell v. State, 591. Traverse v. State, 517. Traviss v. Commonwealth, 395. Trice v. Hannibal & St. J. R. Co., -348. Trigally v. Mayor, etc., of Memphis, ' 387. Trim v. Commonwealth, 1.33, 1-34,407. Trimble v. Commonwealth, 142. Trowbridge v. State, 373. True V. True, 546. Tucker v. Henniker, 342, 343, 346, 347. Tullis V. Kidd, 526. Tully V. People, 591, Turner v. Commonwealth, 274, 560. V. State, 77, 155, 510. Turner's Case, 295. Turns v. Commonwealth, 290, Turpin v. State, 429, Tattle V. State, 380. Tweedy v. State, 175, 184, 204, 536 569. Twitchell t-. Conmionwealth, 366, 386. Tyler v. People, 44, 47, 260, 261, 262. Tyner v. State, 546. Tyra v. Commonwealth, 232, 250,388. U, Udderzook v. Commonwealth, 528, 529, 533. Uhl V. People, 177. Ullery v. Commonwealth, 317, 318. Ulmer v. State, 558. Underwood v. People, 388. Union Ins. Co. v. Cheever, 342. United States v. Armstrong, 47, 77, 143, 149, 579. i\ Bascadore, 555, V. Bayand, 357. V. Beaeham, 303. V. Beebe, 275, 475. V. Bevans, 202. V. Bickford, 362, 363. V. Bicksler, 557, V. Black, 400. v. Bladen, 143. V. Bloomgart, 266. V. Burr, 316. V. Carr, 9, 144, 226, 271. V. Charles, 549. V. Clark, 225, 226, 240, 248, 249, 250, 263. V. Clarke, 233. V. Claypool, 237, 238, 248, V. Cook, 2-56. • V. Coppersmith, 401. V. Cornell, 70, 233, 240, 246, 248, 363. V. Cottingham, 401. V. Craig, 400. V. Crow Dog, 80. V. Curtis, 3(^3, 364. I'. Darnaud, 278. V. Davidson, 372. V. Davis, 47. V. Davis, 378. V. Dawson, 274. V. Demarchi, 302, 303. V. Devlin, 401. r. Donau, 126. V. Douglas, 312. Ix TABLE OF CASES. United States v. Drew, 231, 23G, 240, 248, 249, 250. V. Duffy, 555. r. Forbes, 233, 236, 240, 249, 250. V. Fox, 300. V. Freeman, 07, 98, 169. V. Gibert, 372, 411. V. Goldberg, 120. V. Greathouse, 20. V. Grush, 262. V. Guiteau, 520, 526. i;. Hamilton, 316. V. Hand, 265. V. Harries, 559. V. Hartwell, 358. V. Hewson, 34. V. Holmes, 18, 172, 223, 262, 290 r. Howard, 271. V. Inibert, 143. V. Jailer, 215. V. Jailer of Fayette County, 216. V. Johns, 400. 1-. Jones, 29, 40, 322. V. Keefe, 274. V. Keller, 164. V. Kelly, 372. V. Kie, 323. I'. King, m, 175, 231, 235, 466. V. Knowles, 169. I". Knowlton, 174. V. Lambert, 400. 17. Lancaster, 280. V. Lawrence, 538. V. Learned, 30. V. Lee, 228. V. Leigliton, 174. V. Magill, 45, 48. V. Marchant, 372. V. McGill, 47, 48, 143, 262. V. McGlue, 81, 227, 233, 236, 240, 248, 249, 538. V. Mingo, 156, 178, 536. V. Neverson, 363, 364, 462, 476, 477, 5.57. V. Nott, 547, 549, 550. V. Nunnemaclicr, 126. V. Nye, 278. r. Outerbridgc, 12, 81, 98, 139, 172, 173, 178, 187, 190, 193. V. Pirates, 262. V. Plumer, 356. V. Prior, 556. r. Pumphreys, 549. V. Ramsay, 134. United States v. Reed, 401. t'. Rice, 10, 215, 427. V. Ross, 11,67,95, 96, 128. V. Rondenbush, 236, 245, 247. V. Santos, 379. V. Schumann, 267. V. Scott, 93. V. Shackleford, 401. V. Sharp, 372. I'. Southmayd, 266. V. Spaulding, 275. V. Stewart, 316, 318. V. Tallman, 401. V. Taylor, 164, 443. V. Travers, 31, 139, 215. V. Uphani, 275. V. Veitch, 442. V. Vigol, 18. V. Warner, 97, 164, 167. I'. Wliite, 267. r. Williams, 274, 275, 363, 540, 541, 546, 555. V. Wilson, 274, 372, 556. V. Wiltberger, 13, 16, 139, 143, 173, 178, 184, 190, 204, 262. V. Wood, .363. V. Woods, 442. V. Worms, 266, 267. Upstone V. People, 234, 239, 250, 527. V. Vaidcn v. Commonwealth, 178, 201. Van V. State, 119, 120, 124. Vanauken's Case, 527. Van Buren v. State, 549. Van Buskirk v. Daugherty, 411. Vandermark r. People, 30. Vanvickle v. State, 275. Van Zandt v. Mutual Ben. L. Ins. Co., 526. V. Mutual Life Ins. Co., 50. Varnell v. State, 580. Vass I'. Commonwealth, 442. Vaughan, Ex parte, 320, .324, 326. V. Commonwealth, 441, 549, 550, 551. Vaughn v. Hann, 480. V. Scadc, 388. Vaux's Case, 57. Veatch v. State, 290, 592. Vise r. Hamilton County, 339. Volkavitch c. Commonwealth, 290. VoU, /i J parte, 328. TABLE OF CASES. Ixi W. Waddell v. State, 173. Wade V. State, 304, 363, 381, 583. Wadlington v. State, 14G. Wagner v. People, 274, 560. Walker, Ex parte, 330. V. Sauviiiet, 366. V. State, 30, 94, 301, 342, 433, 435, 440, 484, 405, 505, 506, 510, 520, 539, 540, 541, 551, 573, 594, 595, 596. Wall V. State, 143, 144, 175, 177, 279, 368, 373. Wallace v. State, 6, 7, 93, 358. Waller v. State, 379. Walrath v. State, 314. Walsh V. People, 533. Walston V. Commonwealth, 441, 443. V. State, 594. Walters v. Commonwealth, 311. V. People, 32. Walton, Ex parte, 3.30. V. State, 440, 454, 592. Ward V. State, 290, 292, 440, 547, 548, 550, 551, 596. Warehara v. State, 31, 94, 403. Warner v. State, 104, 2.30, 290. Warnock v. State, 328. Warren v. Commonwealth, 105, 483, 489, 570, 571. v. State, 67, 438, 440, 442, 579. Warrick, Ex parte, 149, 150. Washmgton v. State, .39, 55, 80, 102, 104, 108, 119, 469, 575, 576. Wasson v. State, 178. Watson's Case, 249, 316, .321. I'. Commonwealth, 557, 559. V. State, 46, 144, 173, 204, 205, 311, 440. Watt V. People, 564, 565, 569. Watts V. State, 40. Waybright v. State, 173, 207. Wayne County v. Waller, 339. Weaver v. State, 172, 191, 348, 350. Webb's Case, 27. V. State, 318, 327, 562, 570. Webber ;;. Commonwealth, 522. Webster v. Commonwealth, 507. Weed V. People, 30. Weeks v. State, 563, 569. Weighorst v. State, 98, 100, 593. Welbourn's Case, 444. Welch V. State, 298. Welchell v. State, 294. Wellar v. People, 07, 101, 501. Welsh V. State, 126. Wenz V. State, 243, 246. Wesley v. State, 176, 188, 683. West V. State, 175, 178, 207, 275, 289, 294, 404, 429, 458, 564, 569. Westbrook v. People, 440, 461, 563. Westmoreland v. State, 232, 411. Weston r. Commonwealth, 129, 212, 213. Weyman v. People, 30. Weyrich v. People, 437. Whalen i-. Reg., 400. Whallon v. Bancroft, 387. Wharton c. State, 531, 535. Wheeler v. State, 379, 509. Whitaker v. State, 440. White, Ex parte, 317, 325, 326. V. Bailey, 526. V. Commonwealth, 289. V. People, 136, 137, 348. V. State, 87, 142, 165, 178, 202, 258, 286, 548, 557, 558. r. Territory, 212, 213, 311, 429, 462. Whitney v. State, 232. Wicks V. Commonwealth, 287. Wiggins V. People, 429. V. State, 286. Wightman v. Providence, 347. Wiley V. State, 404. Wilkerson v. State, 294. Wilkinson r. Pearson, 527. Willett V. Commonwealth, 556. Willey V. State, 58, 281, 290, 372. Williams v. Commonwealth, 555, 568, 570, 583. V. People, 427, -546. V. State, 11, 17, 35, 36, .38, 82, 102, 107, 129, 142, 147, 148, 149, 153, 164, 177, 178, 189, 190, 204, 215, 227, 231, 235, 283, 285, 287, .348, 349, 353, 388, 405, 425, 457, 458, 466, 499, 500, 523, 556, 559, 570, 581, 582, 595, 596. Williamson v. State, 166, 226. Willis V. Commonwealth, 240, 250. V. People, 232. Wills V. State, 94. Wilson V. Abrahams, 410, 411. V. People, .32, 145, 409, 413, 438. V. State, 103, 117, 119, 379, 383, 388, 404, 406, 429, 550. Wings V. State, 348. Ixii TABLE OF CASES. Winn v. State, 274. Winnesheik Ins. Co. v. Schueller, 399. Winslow V. State, 545. Winter v. Sass, 346. Wise V. State, 232, 244, 294, 528. Witham r. Diitton, 320, 321. Witliers v. Buckley, ') ; State v. Mayficld, GG Mo. < Stephen's Dig. Cr. L. 155. 125 (1877) ; State v. Orrell, 1 Dev. ^ See Keg. r. Bennett, Bell C. C. 1 (N. C.) L. 180 (1826) ; Edmondsnn (1858) ; Rex v. Carr, 8 Car. & P. 108 V. State, 41 Tex. 406 (1874). See :! (18;-I7); s.c. 34 Eng. C. L. 668; Co. Inst. 53; 1 Hale P. C. 424; 1 Keg. r. Pocock, 17 Q. B. 34 (1851); Arch. Cr. P. 751. s.c. 70 Eng. C. L. 34; Stephen's '^ See post, § 40. Dig. Cr. L. 156. « 18 L. C. Jur. 141 (1874). SEC. 2.] WHAT CONSTITUTES HOMICIDE. 3 feet of his father, and with violent words and menaces, and a knife in his hand, declared that he would have done with the deceased, but was prevented by by-standers from striking the deceased, who was removed in a state of great agitation and weakness, and within twenty minutes after died of syn- cope, the court held that the death having resulted from fear caused by menaces of personal violence and assault, though without actual battery, it was sufficient in law to support an indictment for manslaughter.^ In the recent case of Reg. V. Dorlie ^ the evidence established that one T., an habitual drunkard, went to an hotel in Quebec, where he met the prisoner and some of his companions. T. put himself in the way to be offered drink, which the prisoner ordered for him and paid for. The prisoner then gave him three glasses of liquor, three-quarters whiskey reduced and one-quarter wine, which the deceased drank in rapid succession. Insist- ing on the deceased's capacity to drink, the prisoner offered to make bets that deceased could drink more, and even offered him a share of one of the bets. In this way deceased was induced to drink two very large tumblerfuls of a mixture of beer, whiskey, and wine. Shortly after the deceased was overcome by the drink, became unconscious, and was carried home in a cab, and died next morning without ever having recovered speech or consciousness. In charging the jurj', the court said that drinking with another, or even giving another drink, was in itself innocent, and if the person to whom the drink was given died of the eft'ects of it, the party giving it was not responsible. But if the jury were satisfied that the drink was given not out of good-fellowship, but with the intention of making the deceased ill or drunk, it was an illegal act ; and if the man died from the effects of the drink so given, it would be manslaughter in the part}' giving it. To the same effect is the case of Reg. v. Hilliday,^ in which it appeared that in order to escape from the violence of her husband, who had used threats to her amounting to threats against her life, the wife in attempting to get out of the window fell to the ground and broke her leg, and the hus- band was convicted of having inflicted grievous bodilj- harm 1 Reg. f. Dugal, 4 Queb. L. R. 330 2 9 Q„el). L. R. 852 (1883). (1878). 3 57 L. T. Rep. N. S. 701. 4 HOMICIDE. [chap. I. on hi.3 wife. Chief Justice Coleridge, who presided at the hearing said : " I am of opinion that the conviction in this case is correct, and that the sentence shouki be affirmed. The principle seems to me to be laid down quite fully in Reg. v. Martin.i There this court held that a man who had either taken advantage of or had created a panic in a theatre, and had obstructed a passage, and rendered it difficult to get out of the theatre, in consequence of which a number of people were crushed, was answerable for the consequences of what he had done. Here the woman came by her mischief by getting out of the window, — I use a vague word on purpose, — and in her fall broke her leg. Now that might have been caused by an act which was done accidentally or deliberately, in which case the prisoner would not have been guilty. It appears from the case, however, that the prisoner had threat- ened his wife more than once, and that on this occasion he came home di'unk, and used words which amounted to a threat against her life, saying, ' I'll make you so that you can't go to bed ' ; that she, rushing to the window, got half out of the window, when she was restrained by her daughter. The prisoner threatened the daughter, who let go, and her mother fell. It is suggested to me by my learned brother, that supposing the prisoner had struck his daughter's arm without hurting her, but sufficiently to cause her to let go, and she had let her mother fall, could any one doubt but that that would be the same thing as if he had pushed her out himself? If a man creates in another man's mind an imme- diate sense of danger which causes such person to try to escape, and in so doing he injures himself, the person who creates such a state of mind is responsible for the injuries which result. I think that in this case there was abundant evidence that there was a sense of immediate dano^er in the mind of the woman, caused by the acts of the prisoner, and that, her injuries resulted from what such sense of danger caused her to do." 2 Sec. 3. Homicide by substituted agent. — While it is true that one is guilty of homicide who by an act either di- 1 8 Q. B. Div. 54 (1881) ; s.c. U 2 gep 41 Alb. L. J. 204. Cox C. C. 3G;3. SEC. 4.] AYHAT CONSTITUTES HOMICIDE. 5 rectl}^ or indirectly causes the death of another,^ yet where a killing is caused indirectly through an act of another person, the party indirectly causing such death is not guilty of mur- der even thougli he be in a sense responsible for the act of such other person.''^ Thus where A tells B facts regarding C, in the hope that the knowledge of these facts will induce B to murder C and in order that C may be murdered, but A does not advise B to murder C, and B murders C accordingh*, A has not caused C's death within the meaning of the dehni- tion above given.^ In Reg. V. Pocock '^ it is said that where A, B, and C are road trustees under an act of Parliament and as such under an obligation to make contracts for the repairs of a road, neglect to make any such contract, whereby the road became out of repair, and D passing along is killed, A, B, and C have not killed D. In Rex v. Bennett^ it is said that where A, by his servants, makes fireworks in a house in London, contrary to the provisions of an act of Parliament,^ through the negligence of his servants, and without unj act of his, a rocket explodes and sets fire to another house, whereby B is killed, A has not killed B. But where a person holds himself out as having skill in a particular art, the proper doing of which is necessary to the safety of man, if he knowingly and wilfully does his work in such a manner as to necessarily expose others to a risk of life or limb, and death ensues because of such negligent work, such person will be guilty of murder. Thus wdiere an iron- founder who was ordered to melt down a burst^d cannon, repairs it with lead, and the cannon afterwards being fired wdth an ordinary charge of powder, bursts and kills a person, the founder is guilty of murder." Sec. 4. Substituting poison for medicine. — Where a person substitutes poison for medicine, and death results, he 1 Commonsvealtli v. York, 50 Mass. ^ Stephen's Dig. Cr. L. 136. (9 Mete.) 93 (1845); State v. Hoover, * 17 Q. B. 34 (1851). 4 Dev. & B. (N. C) L. 305 (1839). ° Bell C. C. 1 (1858). 2 Rex V. Bennett. Bell C. C. 1 6 9 & lo Wm. 3, e. 77. (1858); Reg. v. Pocock, 17 Q. B. 34 "Rex v. Carr, 8 Car. & P. 163 (1851); s.c." 79 Eng. C. L. 34; Ste- (1837); s.c. 34 Eng. C. L. 668. phen's Dig. Cr. L. 136. 6 HOMICIDE. [chap. I. is guilty of murder. Thus where poison is knowingly ad- ministered as medicine, by agents who are ignorant that it is poison, and death ensues, the person who tlius procures the poison to be taken, is guilty of murder.^ And where A substitutes poison for medicine, which is to be administered to C by B, and B innocently administers the poison to C, who dies therefrom, A has killed C.^ And where a hus- band gave an apple to his wife, intending to poison her, and she, in his presence and with his knowledge, gave the apple to C, their child, whom the husband did not intend to poison, but he did not interfere with the child's eating the apple, the child havino- died, the father was held to have killed it.^ Sec. 5. Inf uiticide. — A child becomes a human being within the meaning of the definition above given, when it has completely proceeded in a living state from the body of its mother,^ whether it has or has not breathed,'^ and whether the navel string has or has not been divided,*" and the killing of such a child is homicide, whether it is killed by injuries inflicted before, during, or after birth.^ There is an objection to this doctrine on the part of Hale and Saunders ; ^ but the reason upon which their opinions seem to be founded — the difficulty of ascertaining the fact — cannot be con- sidered as satisfactory, unless it be supposed that such fact can never be cleaily ascertained.^ But it has been said that an infant cannot be the subject of homicide until after its complete expulsion, alive, from the body of its mother,^'' because a living child in its mother's womb, or a child in the act of birth, even though such child may have breathed, is not to be regarded as a human being within the meaning of 1 See People v. Adams, 3 Den. « Reg. v. TriUoe, Car. & M. GuO (N. Y.) 190, 208 (184H) ; s.c. 1 N. Y. (1842) ; s.c. 41 Enjr. C. L. (550. 173. " 1 Russ. on Or. (otli En>r. id.) 640; 2 See Donnelland's Case, Stephen's 3 Co. Inst. 50; 1 Ilnwk. P. C, i:. 31, Gen. View Cr. L. 338. § 10; 1 East P. C, e. 5. § 14, p. 228; 3 Saunders' Case, 1 Hale P. C. 430 4 Bl. Comm. 198. Com/uire 1 Hale (1751) : s.c. 2 Plow. 473. P. C. 432. and Sannd. 21. * Rex V. I'onlton, 5 Car. & P. 329 » 1 Hale, 432; Saund. 21. (1832) ; s.c. 24 Eng. C. L. 590. » See E.xod. c. xxi. v. 22. 23. " Rex r. Brain, 6 Car. & P. .349 >' Wallace v. Sfate, 10 Tex. App. (1834) ; s.c. 25 Eng. C. L. 408. 255 (1881). SEC. 6.] WHAT CONSTITUTES HOMICIDE. 7 the definition above given, and the killing of sucli a child is therefore not homicide.^ Thus the Court of Appeals of Texas have said that where the jury might have concluded from the evidence that the defendant took her infant's life before its birth was complete, or that she caused its death by means which she used merely to assist her delivery, the trial court should have instructed for an acquittal in the event the jury should so find.^ Sec. 6. Same — Stating sex of child. — In an indictment for infanticide, although convenient and advisable when it can safely be done, it is not indispensable that the sex of the murdered child be stated, even though its name be unknown, or it has no name.^ 1 Rex V. Enoch, 5 Car. & P. 539 2 Wallace v. State, 7 Tex. App. 570 (1833); s.c. 24 Eiig. C. L. 529, and (1880). see note to the case; Reg. v. Wriglit, ^ State v. Morrissey, 70 Me. 401 9 Car. & P. 754 (1841); s.c. 38 Eng. (1879). C. L. 754; Rex v. Sellis, 7 Car. & P. 850 (1836) ; s.c. 32 Eng. C. L. 850. ' CHAPTER II. KINDS OF HOMICIDE. Sec. 7. Classes of homicide. Sec. 8. Justifiable homicide. Sec. 9. Homicide in the execution of a criminal. Sec. 10. Homicide by an officer resisted in the execution of his duty. Sec. 11. Homicide to prevent a crime. Sec. 12. Same — In preventing misdemeanor. Sec. 13. Same — In protection of property, &c. Sec. 14. Homicide while protecting a federal justice. Sec. 15. Same — Release on habeas corpus. Sec. 16. Homicide from necessity or compulsion. Sec. 17. Same — In case of shipwreck. Sec. 18. Same — Homicide to secure food. Sec. 19. Homicide committed in war. Sec. 20. Excusable homicide. Sec. 21. Same — Distinction between justifiable and excusable homicide. Sec. 22. Homicide in self-defence. Sec. 23. Homicide by misadventure. Sec. 24. Same — The act must be lawful. Sec. 25. Same — Following ordinary occupations. Sec. 26. Same — Administering medicine. Sec. 27. Same — Homicide on correction. Sec. 28. Felonious homicide. Sec. 29. Same — Intent as an element. Sec. 7. Classes of homicide. — Homicide may be divided into two kinds or classes : (1) non-felonious homicide, and (2) felonious homicide. The first class is divisible into (a) justifiable homicide, and (/>) excusable homicide. The sec- ond class may be divided into («) suicide, (^>) murder, and (c) manslaughter. Sec. 8. Justifiable homicide. — Justifiable homicide is where the killing is in consequence of an imperative duty prescrilied l)y law, or is owing to some unavoidable necessity induced by the act of the party killed, without any manner 8 SEC. 9.] KINDS OF HOMICIDE. 9 of fault in the party killing ; ^ and an unintentional homicide is in all cases justifiable where it is inflicted by a person in order to defend himself or any other person from immediate and obvious danger of instant death or grievous harm, where the party committing the homicide acts in good faith and on reasonable grounds for a belief that the homicide is necessary .^ There are five classes of justifiable homicide, as follows : (1) homicide committed in the execution of a criminal, (2) homi- cide by an officer in the execution of his duty, (3) homicide to prevent a crime, (4) homicide from necessity, and (5) homicide committed in battle. Sec. 9. Homicide in the execution of a criminal. — Where the proper officer executes a criminal in the discharge of his official duty, and in strict conformity with a legal sen- tence of death properly passed by a court having jurisdiction, and upon a warrant therefor duly issued, the homicide is justifiable ; however, if any person other than the proper offi- cer — such as a sheriff or his deputy — performs the office of executioner, he is guilty of miu-der. The prisoner must have been found guilty by a competent tribunal ; because it would be murder otherwise to kill the greatest of malefac- tors. The sentence must have been legally given ; that is, by a court or judge having authority to deal with the crime. If judgment of death is given by a judge who has no author- ity, and the accused is executed, the judge is guilty of murder.^ To relieve the officer executing a sentence of death from liability, the sentence must be strictl}' carried out by him ; that is, the sentence as it stands after the remission of any parts which the sovereign thinks fit, so that if he beheads or electrocutes a criminal whose sentence is hanging, or vice 1 See Roscoe's Cr. Ev. (9th ed.) blameless. 1 East P. C. 334. But it 634; 1 East P. C. 219; Hawk. P. C. will be otherwise where the judge b. 1, c. 28, §§ 1, 22; Harris' Cr. L. had no color of authority-, unless the 155; 1 Russ. Cr. (5th Eng. ed.) 843. oflBcer executing the judgment acted 2 See Desty Cr. L. § 126. bona fide in the belief that he had 3 Where the judge passing sentence competent authority. 1 Hawk. P. C. has jurisdiction, but tlie proceedings c. 10, § 4 ; 1 Hale P. C. 496; 1 East are known to him to be erroneous, he P. C. 334; 4 Bl. Conim. 178. See will be guilty of murder, and the oflB- United States r. Carr, 1 Woods C. C. cer executing the sentence will be 480 (1872). 10 HO]NnClDE. [chap. II. versa, he is guilty of murder. Tliough the sovereign may remit a part of the sentence, he may not change it.i As has already been said, if there was no jurisdiction on the part of the court passing judgment and issuing the warrant of execution, the ofhcer executing such warrant will be guilty of murder ; but where there is merely an informality in the order it will be otherwise. - Sec. 10. Homicide by an officer resisted in the execu- tion of his duty. — Where an officer of justice, or other person acting in his aid, in the legal exercise of a particular duty, kills a person who resists or prevents him from execut- ing'^it, this is a justifiable homicide. Homicide is justifiable on this ground in the following cases: (1) When a peace officer or his assistant, in the due execution of his office, whether in a civil or criminal case, kills one who is resisting his arrest or attempt to arrest. (2) When the prisoners in jail, or going to jail, assault the jailer or officer, and he, in his defence, to prevent an escape, kills any of them. (3) W^hen an officer or private person, having legal authority to arrest, attempts to do so, and the other flies, and is killed in the pursuit. But here the ground of the arrest must be either a felony or the infliction of a dangerous wound. (4) When an officer, in endeavoring to disperse a mob or a riot- ous or rebellious assembly, kills one or more of them, he not being able otherwise to suppress the riot.^ Where one is charged with a felony, and he resists arrest, or flies, an officer with a warrant is justified in killing him, and he may do so without a warrant on a probable suspicion founded on his OAvn knowledge, or the information of others ;* so also a killing to prevent an escape after a felony has been 1 Harris' Cr. L. 155; 4 Bl. Conim. ^ Harris' Cr. L. 155. 179; ;} Co. Inst. 52, 211; 1 Hale V. C. * Sue Clements r. State, 50 Ala. 501; 2 Hale P. C. 411. 117 (1874) ; State v. Garrett, Winst. 2 State V. Garrett, Winst. (N. C.) (N. C.) L. 144 (1808) ; Wolf v. State, L. 144 (1808) ; Wolf v. State, 10 Ohio 19 Ohio St. 248 (1809); State r. Ander- St. 248 (1809); State v. Anrlerson, son, 1 Hill (S. C.) L. 327 (18:]:]); 1 Hill (S. C.) L. .827 (18:58) ; United United States v. Rice, 1 Huphes C. C. States V. Rice, 1 Hiinhes C. C. 500 500 (1875); Reg. v. Dadson, 2 Den. (1875). See Clements v. State, 50 C. C. 35 (1850); 1 East P. C. 298; Ala. 117 (1874). 2 Hale P. C. 65. SEC. 10.] KINDS OF HOMICIDE. 11 actually committed is justifiable ; ^ but in such a case abso- lute necessity alone will justify the killing,^ and it must also appear that the object of the officer was avowed.^ An officer attempting to suppress riots, routs, or unlawful assemblies will be justified in committing homicide where it is necessary to arrest the offenders ; and where several persons resolve to resist officers, the officers Avill be justified in any necessary killing, and all persons so resisting are principals in the mur- der or manslaughter which ensues,^ where they act by a common design.'^ Where an officer has been selected and charged with the duty of protecting a justice of the court when threatened Avith personal violence, he will be justified in taking the life of any one attacking such judge, if he acts bona fide and the circumstances are such as warrant Iiim in believing that such killing is necessary.*^ Bat a voluntary killing in attempting to arrest one charged with a misdemeanor is murder." In such a case life can be taken only in self-defence where the party sought to be arrested resists with force, and not merely escapes, or seeks to escape.^ A preparation to resist or a mere attempt at defence will not justify a killing.^ Where a percou is in custody of an officer charged Avith a misdemeanor and attempts to escape, the officer will not be justified in killing him to prevent such escape.^'' In Reneau v. State ^^ the court say : " The law on this sub- ject is, in substance, that an officer having a prisoner in 1 State V. Rutherford, 1 Hawks. ^ See In re Neagle, 39 Fed. Rep. (N. C.) 457 (1821); State v. Roane, 8.38 (1889); s.c. 12 Cr. L. Mag. 21; 2 Dev. (X. C.) L. 58 (1828). s.c. on appeal sub nom. Cunningliam v. 2 Williams V. State, 44 Ala. 41 Neagle, 135 U. S. 1 (1890) ; bU. 34, L. (1870). ed. 55; s.c. 41 Alb. L. J. 367, 429. 3 State V. Roane, 2 Dev. (N. C.) See n\so jwst, §§ 1, 11, 14. L. 58 (1828). ■ Williams v. State, 44 Ala. 41 *Brennan v. People, 15 HI. 511 (1870). (1854) ; State v. Simmons, G Jones » posj 971 ; 1 Hale P. C. 481 ; 1 (N. C.) L. 21 (1858) ; Ruloff v. East P. C. 302. People, 45 N.Y. 213 (1871); Hunling 9 Clements v. State, 50 Ala. 117 V. State, 17 Oliio St. 583 (1867); (1874). United States v. Ross, 1 Gall. C. C. ^^ Reneau v. State, 2 Lea (Tenn.) 624 (1813). 720 (1879) ; s.c. 2 Am. Cr. Rep. 624. 5 Reg. V. Turner, 4 Post. & F. 339 " 2 Lea (Tenn.) 720 (1879) ; s.c. (1864). 2 Am. Cr. Rep. 624. 12 HOMICIDE. [chap. II. custody for felony, who attempts escape, will be excused for killing him if he cannot otherwise be retaken ; but if he can be otherwise retaken, in any case, without resort to such harsh measures, it will be at least manslaughter to kill him. But in cases where the person slain is arrested or held in custody for a misdemeanor, and he flies, or attempts to escape, it will be murder in the officer to kill him, although he cannot be otherwise overtaken; yet, under some circum- stances, it may be only manslaughter, as where it appears that death was not intended." ^ Sec. 11. Homicide to prevent a crime. — Wliere the homicide is committed in the prevention of a forcible and atrocious crime, it is justifiable ; ^ thus, where there is a well- founded belief that a known felony is about to be perpe- trated, this will extenuate a homicide committed to prevent it.^ A woman is justified in killing one who attempts to ravish her ; and so, too, the husband or father may kill a man who attempts a rape on his wife or daughter, if she does not consent. And even if the adultery is by the consent of the wife, the husband, taking the offender in the act and killing him, is guilty of manslaughter only.^ But a homicide to prevent an atrocious crime, such as murder or manslaugh- ter, and the like, is justifiable only when done in good faith, and after the use of all other reasonable means within the power of the slayer to prevent the crime, and in such a case the burden is always on him to show that he was without fault.^ To justify such a killing there must be reasonable grounds to believe that a felony is about to be committed.^ 1 Citin},' Bishop's Cr. L. §§ 648, 049. C. C. 620 (1868) ; Reg. v. Bull, 9 Car. 2 Dill V. State, 25 Ala. lo (1854) ; & P. 22 (18:^9); s.c. 38 Eng. C. L. Oliver v. State, 17 Ala. 587 (1850); 25; 1 Kuss. on Cr. (5th Eng. ed.) 849; State f.Kennedy,20 Iowa, 560 (18()()) ; Fost. 27-3; 1 Hale P. C 445, 481 et State V. Tiiompson, 9 Iowa, 188 (1859) ; secj. ; 1 Hawk. P. C, c. 28, §§ 21 , 24. g.c. 74 Am. Dec. 342; Bohannon v. 8 state v. Rutherford, 1 Hawks. Commonwealth, 8 Bush (Ky.) 481 (N. C.) 457 (1821) ; s.c. 9 Am. Dec. (1871); s.c. 8 Am. Rep. 474; Com- 658. moiiwi-alth i\ Riley, Thach. Cr. Cas. * Harris' Cr. L. 157. (Mass.) 471 (1837) ; Pond y. People, ^ Mitchell r. State, 22 Ga. 211 8 Mich. 150 (1860) ; Huloff v. People, (1857) ; s.c. 68 Am. Dec. 493. 45 N. Y. 213 (1871) ; State r. Rather- ^ Keener i;. State, 18 Oa. 194 (1855); ford, 1 Hawks. ("X. C.) 457 (1H21); s.c. 03 Am. Dec. 269 ; Youhl' /•. Corn- United States V. Uuterbridge, 5 Sawy. monwealth, 6 Bush (Ky.) 312 (1869). . I SEC. 12,] KINDS OF HOMICIDE. 13 A reasonable apprehension is sufficient ; ^ but it seems that such apprehension must have been excited by an actual assault ^ of such a character as to afford reasonable around to believe that the design was to destroy life or commit a felony upon the person assaulted, or to do some bodily injury.^ A non-felonious assault will in no case justify a homicide to pre- vent it ; * and a homicide committed in the prevention of a crime unaccompanied with force, is not within the protection of the rule ; such as picking pockets, and the like.^ It is said in State v. Hill'^ that resistance to an assault, if the lat- ter be not commenced with intent to commit murder, where such resistance is entirely disproportionate to the violence of the original attack, such resistance essentially changes the character of the combat and renders the assaulted party assailant, and in such case, if homicide is committed, the party is guilty of murder. Sec. 12. Same — In preventing niisclemeanor. — Homi- cide is not justifiable to prevent misdemeanors, or even felonies, without force ; ' thus, deliberately killing a man to Pond V. People, 8 Mich. 150 (1860); Decklotts, 19 Iowa, 447 (1865) ; State State r. Rutherford, 1 Hawks. (N. C.) i'. Thompson, 9 Iowa, 188 (1859); 457 (1821); s.c. 9 Am. Dec. 658; Bohannon v. Commonwealth., 8 Bush State r. Harris, 1 Jones (N. C.) L. (Ky.) 481 (1871) ; State v. Roane, 190 (1858); Stoneman v. Common- 2 Dev. (N. C.) 58 (1828); Stewart v. wealth, 25 Gratt. (Va.) 887 (1874). State, 1 Ohio St. 66 (1852) ; Common- 1 State V. Chandler, 5 La. An. 489 wealth v. Drum, 58 Pa. St. 9 (1868) ; (1850'); s.c. 52 Am. Dec. 590; Pond United States r. Wiltberger, 3 Wash, r. People, 8 Mich. 150 (1860) ; Staten C C. 515 (1819). See Rippy r. State, V. State, 30 Miss. 619 (1856); State 2 Head (Tenn.) 217 (1858); Reg. v. V. Roane, 2 Dev. (N. C.) L. 58 (1828) ; Dadson, 2 Den. C. C. 35 (1850). State i: Rutherford, 1 Hawks. (N. C.) ^ i Hale, 486; 4 Bl. Conim. 180. 457 (1821) ; s.c. 9 Am. Dec. 658. See 1 East P. C, c. 4, §§ 45, 273. 2 State V. King, 22 La. An. 454 6 4 Dev. & B. (N. C.) L. 491 (1839); (1870) ; State v. Chandler, 5 La. An. s.c. 34 Am. Dec. 396. 489(1850); s.c. 52 Am. Dec. 599. "See Noles v. State, 26 Ala. 31 3 Noles V. State, 26 Ala. 31 (1855) ; (1855) ; s.c. 62 Am. Dec. 711 ; Harri- s.c. 62 Am. Dec. 711; State r. Chand- son v. State, 24 Ala. 67 (1854) ; s.c. ler, 5 La. .^n. 489 (1850); s.c. 52 Am. 60 Am. Dec. 450; Carroll v. State, Dec. 599; Staten v. State, 30 Miss. 23 Ala. 28 (1853); s.c. 58 Am. Dec. 619 (1856); Stoneman v. Common- 282; Carmouche v. Bonis, 6 La. An. wealth, 25 Gratt. (Va.) 887 (1874). 95 (1851); s.c. 54 Am. Dec. 558; 1 Oliver v. State, 17 Ala. 587 (1850); McDaniel v. State, 16 Miss. (8 Smed. Keener v. State, 18 Ga. 194 (1855); & M.) 401 (1847) ; s.c. 47 Am. Dec. s.c. 63 Am. Dec. 269; State ;•. Ken- 93: Roberts r. State, 14 Mo. 138 nedy, 20 Iowa, 569 (1866) ; State v. (1854) ; s.c. 55 Am. Dec. 97. 14 HOMICIDE. [chap. II. prevent mere trespass upon property is murder, whether such trespass couhl or could not be otherwise prevented.^ And such killing will be murder, although unintentionally done, if committed with a deadly weapon.^ Sec. 13. Same — In protection of property, &c. — It is said that a party may repel force by force in defence • of his person, habitation, or property, against one who manifestly intends or endeavors, by violence or surprise, to commit a felony on either, and if a conflict ensues and he takes life, the act is justifiable ; ^ and it has been held by the supreme court of Kentucky * that one having property in a warehouse well Secured under locks may erect, as an additional protec- tion at night, a spring-gun to explode on entering the house. The court say : " It would seem that the right of killing to prevent the perpetration of crime depends more upon the character of the crime and the time and manner of its attempted perpetration, than upon the degree of punishment attached to it l)y law, or upon the fact of its being designated in the penal code as a felony or not. A name can neither add to nor detract from the moral qualities of a crime ; and, in the eye of reason and justice, the intrinsic nature of the offence, together with the time and manner of its attempted commission, must ever test the legality of the means resorted to for its prevention." But the supreme court of Alabama say in the case of Noles V. State,^ that a mere trespass upon the person- and liberty of the slayer Avhich created no reasonable belief in his mind that any of the trespassers would commit any felony, or do him any great bodily harm, will not excuse liis killing 1 Harrison v. State, 24 Ala. 07 2 McDanicl v. State, 10 Miss. (8 (18.34) ; s.c. 00 Am. Dec. 450; Car- Smed. & M.) 401 (1847) ; s.c. 47 Am. roll V. State, 23 Ala. 28 (1853) ; s.c. Dec. 93; Roberts c. State, 14 Mo. 138 58 .\m. Dec. 282. In Carroll v. State, (1851) ; s.c. 55 Am. Dec. 07. 23 Ala. 28 (1853); s.c. 58 Am. Dec. 3 State r. Tliompson, 9 Iowa, 188 282, it is said that a mere civil tres- (1859) ; s.c. 74 Am. Dec. .342. See pass upon a man's bouse, unaccom- poM, § 107. panied by such force as to make it a * See (Iray r. Combs, 7 J. J. Marsh, breach of the peace, is not a sufficient (Ky.) 478 (1832) ; s.c. 23 Am. Dec. provocation to reduce the killin); s.c. 12 Cr. L. Mag. 21; 40 (1790); s.c. 1 Am. Dec. 211; State Alb. L.J. 284; s.c. affirmed on appeal v. Hill, 4 Dev. & B. (N. C.) L. 491 sub nom. Cunningham v. Neagle, 135 (1839); s.c. 34 Am. Dec. 396; Penn- U. S. 1 (1890); bk. 34 L. ed. 55; s.c. sylvania v. Robertson, Addis. (Pa.) 41 Alb. L. J. 3G7, 429. 240 (1794) ; Isaacs v. State, 25 Tex. 2 Oliver r. State, 17 Ala. 587 (1850); 174 (1860); United States r. Wilt- 1 Bish. Cr. L. (Otli ed.) § 346; 1 bcrger, 3 Wash. C. C. 515 (1819); Whart. Cr. L. (8th ed.) § 95; 4 Bl. 1 Whart. Cr. L. (8th ed.) § 510; 4 Comm. 28; 1 Hale P. C. 43, 52. Bl. Comm. 178. 3 Davison r. People, 90 111. 221 * Dupree ;•. State, 33 Ala. 380 (1878); State v. Benham, 23 Iowa, (1859); s.c. 73 Am. Dec. 422; Ken- 154 (1867); s.c. 92 Am. Dec. 417; nedy r. Commonwealth, 14 Bush (Ky.) Kennedy v. Commonwealth, 14 Bush 341 (1878) ; Farris v. Commonwealth, (Ky.) .341 (1878); People r. Doe, 14 Bush (Ky.) .363 (1878) ; Common- 1 Mich. 451 (1850) ; Slate v. Shippei/, wealth r. Drum, 58 Pa. St. 9 (1868). 10 Minn. 223 (1805) ; s.c. 88 Am. Dec. & Dupree v. State, 33 Ala. 380 (1859) ; SEC. 16.] KINDS OF HOMICIDE. 17 absolute,^ and there must be no other probable or. possible means of escape.^ The necessity must be great and must arise from immediate peril to life or limb,^ and in such circumstances, to render the homicide justifiable, the killing must be necessary in order to save life or to save from great bodily harm.'* The homicide will not be excused unless the slayer acted in the honest and well-founded belief that it was necessary to take the life of the deceased in order to save the life of himself or anothe'r, and there must have been a reasonable cause to excite such an apprehension in a reasonable mind.-^ Thus it has been said that the fears of a coward do not justify a homicide, but that to have such an effect the fears of the slayer must have been those of a reasonable, courageous, and self-possessed man.*^ The necessity justifying the homicide does not arise until after the slayer has employed all the means in his power to avert the necessity." The Supreme Court of Minnesota say in the case of State v. Shippey® that s.c. 73 Am. Dec. 422 ; Farris v. Com- monwealth, UBusli (Ky.) 363 (1878); Kennedy v. Conimonwealtii, 14 Biisii (Ky.) 341 (1878) ; McDaniel v. State, 16 Miss. (8 Snied. & M.) 401 (1847) ; s.c. 47 Am. Dec. 93; State v. Koane, 2 Dev. 58 (1828) ; State v. Butherford, 1 Hawks. (N. C.) 457 (1821) ; s.c. 9 Am. Dec. 058 ; Commonwealth v. Drum, 58 Pa. St. 9 (1868) ; Rex v. Scully, 1 Car. & P. 319 (1824) ; s.c. 12 Eng. C. L. 319 ; Rex v. Longden, Russ. & R. 228 (1812). See March V. Walker, 48 Tex. 372 (1877). 1 People V. Travis, 56 Cal. 251 (1880); s.c. 6 Pac. C. L. J. 534; Mitchell V. State, 22 Ga. 211 (1857) ; s.c. 68 Am. Dec. 493 ; Davison v. Peo- ple, 90 111. 221 (1878\ 2 State V. Shippey, 10 Minn. 223 (1865); s.c. 88 Am, Dec. 70; People V. Sullivan, 7 N. Y. .396 (18-52) ; Com- monwealth V. Drum, 58 Pa. St. 9 (1868). ^ Commonwealth v. Drum, 58 Pa. St. 9 (1868). * Commonwealth v. Drum, 58 Pa. St. 9 (1868). See Killen r. State, -50 Ga. 223 (187.3) ; Oneal v. State, 47 Ga. 229 (1872) ; Pound v. State, 43 Ga. 89 (1871); Buchanan v. State, 24 Ga. 282 (1858) ; Teal v. State, 22 Ga. 75 (1857); s.c. 68 Am. Dec. 482; Armistead v. State, 18 Ga. 704 (1855) ; Haynes r. State, 17 Ga. 465 (1855); Davis V. State, 10 Ga. 101 (1851). s Jackson v. State, 6 Baxt. (Tenn.) 457 (1874) ; Rippy v. State, 2 Head (Tenn.) 217 (1858); Williams v. State, 3 Heisk. (Tenn.) ,376 (1872); s.c. 1 Gr. Cr. Rep. 257. See Oliver v. State, 17 Ala. 587 (1850) ; People v. Hurley, 8 Cal. .390 (1857) ; Kennedy v. Com- monwealth, 14 Bush (Ky.) .341 (1878); Young V. Commonwealth, 6 Bush (Ky.) 319 (1869); Philips v. Com- monwealth, 2 Duv. (Ky.) 328 (186-5). 6 Teal V. State, 22 Ga. 75 (1857) ; s.c. 68 Am. Dec. 482. ■ Atkins V. State, 16 Ark. 568 (18-55) ; State v. Shippey, 10 Minn. 223 (1865); s.c. 88 Am. Dec. 70 Edwards f. State, 47 Miss. 581 (1873) People V. Sullivan, 7 N. Y. -396 (1852) State )'. Martin, .30 Wis. 216 (1872). 8 10 Minn. 223 (1865) ; s.c. 88 Am Dec. 70. 18 HOMICIDE. [chap. II. '' it is not enough that the party believed himself in danger, unless the facts and circumstances were such that the jury can say he had reasonable grounds for his belief.^ In Ten- nessee, I believe, it has been held otherwise ;2 but I think this decision stands alone, unsupported by either principle or authority. Such belief would perhaps reduce the crime to manslaugliter, but Avhether it would or not it is not necessary to decide in this case." All homicides committed under compulsion of law are excusable on the ground that there is no exercise of will,^ such as killing to save life,^ to prevent an escape after a felony has been committed,^ or where one is attacked bj^ a rufhan.*^ Sec. 17. Same — In case of shipwreck. — It is said in the case of United States v. Holmes'^ that in all cases of shipwreck where it is necessary that a part should be sacri- ficed in order that the remainder might be saved, and the peril is so sudden and overwhelming as to leave no choice of means and no moment for deliberation, that a person will be justified in sacrificing the life of another in his own inter- ests ; but in other circumstances the decision by lot should ])e resorted to. It seems, however, that seamen have no right, even in cases of extreme peril, to sacrifice the lives of passengers for the sole purpose of saving their own. Sec. 18. Same — Homicide to secure food. — The volun- tary killing of a human being in order to use his flesh for the preservation of the lives of those conmiitting the homicide is a criminal offence, even though the slayers are at the time drifting in the middle of the ocean and the flesh of the slain is necessary to prolong their lives.^ Thus the English High 1 See Shorter I'. People, 2 N. Y. 103 ■'Oliver v. State, 17 Ala. 587 (1849) ; s.c. 51 Am. Dec. 28G; United (1850). States V. Vigol, 2 Dall. C C. 340 ^ State v. Rutherford, 1 Hawks. (1795); Whart. Cr. L. 380; Archb. (N. C.) 457 (1821); s.c. 9 Am. Dec. (Jrim. I'r. & Pi. 798. 058. ■■^ Granger v. State, 5 Yerg. (Tenn.) « People v. Doe, 1 Mich. 451 (1850). 459 (1830) ; s.c. 26 Am. Dec. 278. ' 1 Wall. C. C. Jr. 1 (1842). ••' See 1 Jiish. Cr. L. (0th ed.) 347 ; » In re Dudley (tlie "ISIionnnette " 1 Whart. Cr. L. (8tl» ed.) § 94 ; 4 Bl. Case), Cr. L. Mag. 95 (1884) ; s.c. Comm. 28, 179^ 1 Hale P. C. 43. on appeal Am. Cr. L. Mag. 204; 2 Am. L.J. 37. SEC. 19.] KINDS OF HOMICIDE. 19 Court of Queen's Bench, in the case of Reg. v. Dudley,^ which Avas one of the "• Mignonette " cases, and was the trial at Exeter of an indictment for murder on tlie high seas, the jury returned a special verdict to the effect that the prisoners, Avith one B., all able-bodied English seamen, and the deceased, were cast away in a storm on the high seas, and compelled to put out in an open boat; that- they had in this boat no supply of water, and no food except two tins of turnips, and that when they had been seven days without food and five without water, Dudley proposed to Stephens and B. that lots should be cast who should be killed to save the rest; that B. refused, and it was not put to the deceased ; that subse- (juently Dudley proposed that the deceased should be killed ; that Stephens consented, but B. refused; that the deceased was then helpless and unable to resist, and did not assent to be killed; that Dudley, with the consent of Stephens, killed the deceased, and that the three men fed on his flesh for four days, when they were picked up by a passing ship and landed at Falmouth ; that if they had not so fed on the flesh of deceased, they would probably not have survived to be res- cued ; that at the time the deceased was killed there was no reasonable prospect of relief, and tliat there was no apprecia- ble chance of saving life except by killing some one for the others to eat, but that there was no greater necessity for killing the deceased than any of the others. The court held that upon these findings the piisoners Avere guilty of murder.^ Sec. 19. Homicide committed in war. — Where a person 1 14 Q. B. Div. 273 & 5G0 (1884) ; who liad proposed it. No one wished s.c. Cr. L. Mag. oOl. to perform the office of butclier, and 2 Nicola us Tiilpius, in the work lots were again cast to provide one. "Observationem Medicaruni," written Tiie body was afterwards eaten. At in 1(!41, gives an instance where seven lengtJi the boat was cast on the shore Englislinien liad prepared tliemselves of tlie Isle of St. Martin (one of tlie in tlie Island of St. Christopher (one same group), where the six survivors of the Caribbean Islands) for a cruise were treated with kindness by the in a boat for a period of one night Dutch, and sent home to St. Christo- only, buta storm drove them so far pher. The slayers on their return out to sea that they could not get from St. Martin, which was about back to port for seventeen days. One seven leagues away, were arrested by of them proposed that they should an officer and brought to trial, but cast lots to settle on whose body they were let go because " the inevitable should assuage their ravenous hunger, necessity had washed away their Lots were cast, and the lot fell on him crime." 20 HOMICIDE. [chap. II. is ill an army bearing arms under a sovereign, and in the course of his profession commits a homicide by command of his sovereign or his superior officer, he is not amenable to the civil law, and cannot be punished therefor in the civil courts ; ^ the case is against the sovereign and not the snl>- ject.2 The same is thought to be true also in those cases where an incidental act is committed without the command or authority by the government, and such act is afterv/ards adopted and ratified by the government under and for which the person acts.^ In the case of People v. McLeod,* however, a different doctrine seems to have been held, but the doctrines there laid down cannot be regarded as either sound or safe. In that case, during the possession of Navy Island, in the Niag- ara River, in the Avinter of 1837 by British insurgents (aided by misguided individuals of this coinitry), an expedition was fitted out under the direction of the colonial authorities of Canada, for the destruction of a steamboat, which was sus- pected to have been used for conveying warlike stores to the Island. The boat was captured while moored on the Ameri- can shore of the river and burnt. During the melee an American citizen was killed. The court held that a British subject, who was charged to have belonged to the expedition, and was subsequently arrested, was liable to be proceeded against individually in the criminal courts of the state of New York. This decision did not give satisfaction to the profession, and was severely criticised, and justl3% by eminent jurists ; but as jNIcLeod was afterwards acquitted on the facts, nothing more was heard of it.'^ 1 Commonwealth r. Holland, 1 Diiv. 1 fJall. C. C. HO.'], 5G8 (181:3) ; Vattel (Ky.) 182 (1804) ; Hammond v. State, L. of Nat. b. 2, § 74. 8 Coldw. (Tenn.) 120(180(1); Whart. •* 1 Hill (N. Y.) 377 (1841); s.c. Conf. L. § 909; Wliart. Cr. L. (7th 2;') Wend. (N. Y.) 483; oT Am. Dec, ed.) § 702 qi ; 3 Co. Inst. 50; 1 Hale ;528. P. C. 4'->'j. Coiii/xtre United States r. •> In this case the United States and Greathouse, 2 Abb. (U. S.) 004 (180o). Great Britain were really the two 2 The Emnlous, 1 Gall. C. C. ^}GP> contesting; parties. The latter insisted (1813); Whart. Conf. L. § 911; that the executive department of this Whart. Cr. L. (7th ed.) § 210 q' ; Par. government should interpose, and re- Priv. Int. Nat. L. § \P>9. quire the judiciary to release McLeod ''See Case of Tliorshaven, Edw. from custody of the New York courts. Adm. 108, 109 (1809) ; The Emulous, The former replied that tlie executive SEC. 20.] KINDS OF HOMICIDE. 21 While it is legal to kill a a alien enemy in tlie heat and exercise of war, it is murder to kill such an enemy after he lias laid down his arms.^ Sec. 20. Excusable homicide. — An excusable homicide is one where a person in doing a lawful act, without inten- tion to hurt or injure any one, and using proper precaution, by accident or misadventure kills another.^ In an excusable liomicide the party killing is not altogether free from blame, but the necessity which renders it excusable may be said to be partly induced by his own act.^ The act must be lawful ; for if the act be unlawful, the homicide will amount to mur- der, or manslaughter, as has been already shown. The act (lid not possess the authority to inter- fere with the judicial department, and to do so would be in effect to deter- mine that a person held under indict- ment in due form, found by a legally constituted grand jury, was guilty of no offence under our laws. Upon this question we apprehend that there can be little doubt of the correctness of the position taken by the government of the United States. The guilt or innocence of an accused is essentially a judicial question. This ordinarily would be doubted by no one. In the above oase it was insisted that even if McLcod had participated in the burning of the Caroline and the killing of Durfee, he did so acting under the command of his sovereign, or of her military officers, and was therefore not answerable to the judi- cial tribunals of the nation in which these acts were done. If this were true, it constituted nothing but matter of evidence showing that under the indictment against him he ought to be acquitted. In response to this evi- dence it was surely competent for the prosecution to offer other evidence, if such it could produce, to prove that the accused did not act under the directions of any sovereign or other power, but committed the acts from mere wantonness and malice. In this view of the case, Great Britain never coincided, and the conviction of McLeod would doubtless have been followed by an immediate declaration of war against the United States. See note to People v. McLeod, 37 Am. Dec. 364. The refusal of the local authorities to discharge McLeod without a trial jeopardized the foreign relations of the federal government, and to pre- vent a recurrence of transactions of this nature, the act of August 29, 1842 (U. S. Stats, at Large, vol. 5, p. 509) was passed to bring such cases under the cognizance of the United States judges at the inception of the proceedings. Those who are interested in the full history of this subject can con- sult Von Hoist's Constitutional His- tory of the LTnited States ; Wheaton's International Law (Lawrence's edi- tion), 189; /(/. Dana's edition, § 293; 3 PhiUim. Int. L. 50-54; Halleck Int. L. 333, §§ 19-23 ; Webster's Works, vol. 2, p. 19; vol. 5, pp. 116, 120, 125, 1.33; vol. 6, pp. 247-270; Id. Diplo- matic Papers, 120-140; and Judge Talmage's Review of the opinion of Judge Cowcn, published in 26 Wend. G63. 1 State V. Gut, 13 Min. 341 (1808) ; Vattel L. of Nat. b. 3, § 149. 2 Desty's Cr. L. §. 125. 3 Roscoe's Cr. Ev. 634 ; Harris' Cr. L. 158; 1 Russ. on Cr. (5th Eng. ed.) 844 ; 1 East P. C, c. 5, § 36, p. 261. 22 HOMICIDE. [chap. II. resultino- in the killing must not be done with intention of inflicting great bodily harm ; for then the legality of the act, considered abstractedly, would be no more than a mere cloak, or pretence, and consequently would avail nothing.^ Excusable homicide is divided into two classes : (1) homi- cide in self-defence, and (2) homicide by accident or misad- venture. Sec. 21. Same — Distinction between justifiable and excusable Lomicicle. — Harris says- that there is little if any ground for the distinction between justifiable and excusa- ble homicide. Perhaps there may be something in tliis, that in the first case the killer is engaged in an act which the law enjoins or allows positively, while in the latter he is about something which the law negatively does not prohibit. The reason usually given is that in both the forms of excusable homicide there may be some degree of blame attributed in the first case, i.e. self-defence, inasmuch as in quarrels both parties are to some extent in fault ; the second, i.e. accident, the party may not have used sufficient caution. But to visit the act under all circumstances with a punishment due to what may have happened is obviously unjust. In neither case is there any malice, which is always an essential of a crime. " In former times a very marked distinction was made in the two kinds of homicide. That styled ' excusable ' did not imply that the party was altogether excused ; so much so that Coke says that the penalty is death.^ But the earliest information which the records contain specially shows that the defendant was entitled to a complete pardon on the restitu- tion of his cause ; but he had to pay a certain sum of money to procure its award. Formerly in this case it was the practice for the jury to find the fact specially, and upon certifying the record into cliancery, a pardon issued, of course, under the statute of Gloucester, ch. 9, and the forfeiture w.xs thereby saved. But latterly it was usual for the jury to find the prisoner not guilty."* Under the present English statute^ it is provided that " no punishment or forfeiture shiill be incurred 1 1 Euss. on Cr. (^th Eng. ed.) 844. * 1 East P. C. 220. 2 Harris' Cr. L. 158. 5 24 & 25 Vict. c. 100, § 7. 8 2 Co. Inst. 148, 315. SEC. 22.] KINDS OF HOMICIDE. 23 by any person who shall kill another by misfortune or in his own defence, or any other manner without felony." ^ Sec. 22. Homicide in self-defence. — Homicide in self- defence is a sort of homicide committed se et sua defendendo, in defence of a man's person or property, upon some sudden affray, said by the law to be in some measure blamable and bearably excusable.^ But to bring the killing within this excuse, the accused must show that he endeavored to avoid any further struggle, and retreated as far as he could, until no possible, or at least probable, means of escaping remained ; that then, and not until then, he killed the other in order to escape destruction or great bodily harm. It matters not that the defendant gave the first blow, if he has terminated his connection with the affray by declining further struggle before the mortal wound is given. Of course the defence must be made by the person assaulted while the danger is imminent ; for if the struggle is over, or the other is running away, this is revenge and not self-defence ; nor will a retreat of the nature indicated avail if the blow is the result of a concerted design ; as in the case of a duel, where the two parties have agreed to meet each other, and one, having retreated as far as he can, kills the other in protection of himself. Nor will it avail if there has been a blow from malice p)-epense, and the striker has re- treated and then killed the other in his own defence.^ It has been said that the rule is well settled, that the killing of one who is an assailant must be under a reasonable appre- hension of loss of life or great bodily harm ; and the danger must appear so imminent at the moment of the assault as to present no alternative of escaping its consequences, but by resistance. Then the killing may be excusable, even if it turn out afterward that there was no actual danger.* It is thought, however, that the guilt of the accused must in a measure at least depend on the circumstances as they appeared to the party- at the time.'^ 1 See Roscoe's Cr. Ev. 634. St. 205 (1861) ; s.c. 80 Am. Dec. 2 1 Russ. on Cr. (5th Eng. ed.) 844 ; 'ISl. Harris' Cr. L. 159; Fost. 273. ^ Rpp.. v. Thurborn, 1 Den. C. C. 3 Harris' Cr. L. 159. .387 (1849). For a 'full discussion of * Logue V. Commonwealth, 38 Pa. the question of self-defence as a justi- 24 HOMICIDE. [chap. II. Sec. 23. Homicide by misadventure. — Homicide by mis- adventure is where a man, doing a lawful act without an intention of bodily harm, and after using proper precautions to prevent danger or injury, unintentionally happens to kill another person.^ The act must be lawful ; if it be unlawful the homicide will amount to murder or manslaughter ; ^ and it must not be done with intention of great bodily harm ; for if it is, then the legality of the act considered abstractly would ])e no more than a mere cloak or pretence, and conse- quently would avail nothing. The act must also be done in the proper manner and with due caution to prevent danger.^ Sec. 24. Same — The act must be lawful — Punishment of children. — The act upon which the death ensues must be lawful in itself; for if it be malum in se, the case w^ill amount to felony, either murder or manslaughter, according to the circumstances. If it be merely malmn prohibitum, that will not vary the degree of the offence. The usual examples under this head are : (1) Where death ensues from innocent recreations; (2) from moderate and lawful correction inforo domestico ; and (3) from acts lawful or indifferent in them- selves, done with proper and ordinary caution. Homicide by chance-medley is strictly where death ensues from a combat between the parties upon a sudden quarrel ; but it is fre- quently confounded with misadventure or accident.'^ To bring the slaying within the protection of the excuse, the act al)out which the slayer is engaged must be a lawful one. For if the slaying happen in the performance of an illegal act, it is manslaughter, at least, and murder if such act is felony.^ It must also be done in a proper manner. Thus, it is a lawful act for a parent to chastise his child, and, therefore, if the parent happen to occasion the death of the child, where the punishment is moderate, the parent will be lication for a liomicido, sec post, § lOG - 1 Kuss. on Or. (5th Eng. ed.) 751), et seq. 812. 1 State V. Benliam, 23 Iowa, 154 ^ 1 Russ. on Cr. (5tli En0). Tlie ohjcction to this ^ Cornmnnwcaltii v. Macloon, 101 definition is that it is defective in as Mass. G, 8 (1809). SEC. 29.] KINDS OF HOMICIDE. 29 Sec. 29. Same — Intent as an element. — The intent with which the unlawful act is committed is the controlling element. An intent to kill is an essential element in murder, except in those cases where the accused is engaged in perpe- • trating a felony at the time when the injury is inflicted.^ Simply an intent to inflict serious bodily injury, however, has been held to be sufficient.^ Lord Manstield says^ that the ancient writers, in treating of felonious homicide, considered the felonious intention in the same light in point of guilt as homicide itself. Voluntas reputahatur prof acta ; a rule which has long been laid aside as too rigorous in the case of com- mon persons, though retained in the English statute of trea- sons ; * but when the rule prevailed, it was necessary that the intention should be manifested by plain facts, not by bare words of any kind. Hcec voluntas non intellecta fuit de voluntate nudis verbis aiit scriptis, propalata, sed mundo mani- festato fait p>er apertuni factum.^ Every one is presumed to intend that which he voluntarily does,^ and the law infers that every one intends the neces- sary consequences of his acts;' hence, if one wills to effect a purpose, either legal or illegal, he is to be regarded as caus- ing the resulting illegal act.^ Where the leading motive with which an act is done is illegal or malicious, it adds to the act its essential evil intent.^ Generally the legal intent may be inferred from the commis- sion of the act itself. i*^ Thus, if a man, knowingly, does an 1 People V. Austin, 1 Park. Cr. Cas. 2 Car. & K. 368 (1847) ; s.c. Gl Eng. (N. Y.) 154 (1847). C. L. 367. ■2 See Commonwealth v. Green, 1 ^ State v. Moore, 12 N. II. 42 Ashm. (Pa.) 289 (1826) ; Summers v. (1841) ; Reg. v. Bowen, Car. & M. 149 State, 5 Tex. App. 365 (1879) ; Post. (1841) ; s.c. 41 Eng. C. L. 86; Reg. v. 259 ; 1 Hale P. C. 491. Geach, 9 Car. & P. 499 (1840) ; s.c. 38 3 Rex V. Scofield, Cald. 897 (1780). Eng. C. L. 294; Rex v. Batt, 6 Car. * 25 Ed. 3, St. 5, c. 2. & P. 329 (1834) ; s.c. 25 Eng. C. L. 5 3 Co. Inst. 5 ; Post. 193. 458 ; Rex v. Davis, 1 Car. & P. 306 6 Hill I'. People, 1 Colo. 436 (1872). (1824) ; s.c. 12 Eng. C. L. 183; Rex •? Commonwealth v. Green, 1 Ashm. v. Gillow, 1 Lew. C. C. 57 (1825); Rex (Pa.) 289 (1826); Rex v. Dixon, 3 r. Cox, Russ. & R. C. C. 362 (1818). Maul. & S. 15 (1814); Post. 259. See Commonwealth v. McPike, 57 8 United States v. Jones, 3 Wash. Mass. (3 Cush.) 181 (1849); People C. C. 209 (1813); Reg. ?•. Howell, e-. Curling, IJohns. (N. Y.) 320 (1806). 9 Car. & P. 437 (1839) ; Rex v. Whit- ^^ Bain v. State, 61 Ala. 76 (1878) home, 3 Car. & P. 394 (1828); s.c. Commander r. State, 60 Ala. 1 (1877) 14 Eng. C. L. 627; Reg. v. Haines, Hadley v. State, 55 Ala. 31 (1876) 30 HOMICIDE. [chap. II. act unlawful in itself, and it produces tlie harm intended, the law infers the criminal intent ; ^ because where a xjerson is of sound mind 2 he is presumed to intend the natural conse- quences of his act as well as the proximate consequences,^ Woodward v. State, 54 Ga. 100 (1875) ; s.c. 1 Am. Cr. lit- p. 3(3(5 ; Hood v. State, 56 Iml. 2(53 (1877) ; Cluck v. State, 40 Iiul. 203 (1872) ; Common- wealtli I'. Stout, 7 B. Mon. (Ky.) 247 (1847); Cominoiiwealtli u. York, 50 Mass. (9 Mete.) 103 (1845) ; State v. Underwood, 57 Mo. 40 (1874) ; s.c. 1 Am. Cr. Rep. 251; lleg. v. Regan, 4 Cox C. C. 335 (1850). See Broom Com. 876. 1 Bain v. State, 01 Ala. 76 (1878) ; Stein r. State, 37 Ala. 123 (1861) ; People V. Trim, 39 Cal. 75 (1870) ; Vaiidermark r. People, 47 111. 122 (1808) ; Hood v. State, 56 Ind. 263 (1877) ; Cluck v. State, "40 Ind. 203 (1872); Walker v. State, 8 Ind. 290 (1850) ; State v. Goodenow, 05 Me. 30 (1870) ; s.c. 1 Am. Cr. Rep. 42; State V. Smith, 32 Me. 300 (1851) ; Com- monwealth V. McLaughlin, 87 Mass. (5 Allen) 507 (1802) ; Commonwealth V. York, 50 Mass. (9 Mete.) 103 (1845); Commonwealth v. Drew, 4 ^lass. 391 (1808) ; State v. Welch, 21 Minn. 27 (1874); Stokes v. People, 53 N. Y. 164 (1873); People v. Herrick, 13 Wend. (N. Y.) 87 (1834) ; State v. Smith, 2 Strobh. (S. C.) L. 77 (1847) ; Ann V. State, 11 Humph. (Tenn.) 159 (18.J0); Holly V. State, 10 Humpli. (Tenu.) 141 (1849) ; State v. Patter- son, 45 Vt. 308 (1873); Felton v. United State.s, 96 U. S. (6 Otto) 699 (1877); bk. 24 L. cd. 875; United States V. Learned, 1 Abb. (U. S.) 483 (1870); Rc.\ V. Robinson, 2 Leach C. C. 749 (1790); Rex v. Hunt, 3 Barn. & Aid. 5()() (1820) ; s.c. 5 Eng. C. L. 327; Rex v. Woodfall, 5 Burr. 2661 (1771) ; 3 Green Ev. § 730. 2 Meredith v. State, 60 Ala. 441 (1877); Mitchum v. State, 11 Ga. 015 (1852); Hanrahan v. People, 91 111. 143 (1878); Hood V. State, 56 Ind. 2f)3 (1877); Cluck v. State. 40 Ind. 203 (1872); Walker v. State, 8 Ind. 290 (1856); State v. Goodenow, 05 Me. 30 (1870) ; s.c. 1 Am. Cr. Rep. 42 ; Commonwealth v. Bonner, 50 Mass. (9 Mete.) 410 (1845); Common- wealth V. York, 50 Mass. (9 Mete.) 93 (1845) ; Commonwealth v. Snelling, 32 Mass. (15 Pick.) 337 (1834) ; Com- monwealtli v. Drew, 4 Mass. 391 (1808) ; Woodsides v. State, 3 Miss. (2 How.) 656 (1837) ; State v. Cooper, 13 N. J. L. (1 J. S. Gr.) 361 (1833) ; State V. Zellers, 7 N. J. L. (2 Halst.) 220 (1824) ; People v. Clark, 7 N. Y. 385 (1852) ; Miller v. People, 5 Barb. (N. Y.) 203 (1849) ; People v. Cot- teral, 18 Johns. (N. Y.) 115 (1820) ; People V. Kirby, 2 Park Cr. Cas. (N. Y.) 28 (1823) ; People v. Herrick, 13 Wend. (X. Y.) 87 (1834) ; State r. Merrill, 2 Dev. (N. C.) L. 209 (1829) ; State V. Mitchell, 5 Ired. (X. C.) L. 350 (1845) ; State v. Jarrot, 1 Ired. (N. C.) L. 70 (1840) ; Hill v. Com- monwealth, 2 Graft. (Va.) 594 (1845) ; Rex V. Jones, 2 Car. & P. 029 (1827) ; s.c. 12 Eng. C. L. 773. See State v. Gilman, (59 Me. 103 (1879) ; Cathcart V. Commonwealth, 37 Pa. St. 108 (1800) ; 2 Greenl. Ev. § 13 ; 1 Greenl. Ev. § 18 ; Stark. Ev. 738. 3 Meredith v. State, 00 Ala. 441 (1877) ; Commander v. State, (50 Ala. 1 (1877) ; Hadley v. State, 55 Ala. 31 (1870) ; People i-. Honshell, 10 Cal. 83 (1858) ; State v. Stanton, 37 Conn. 421 (1870) ; Clarke v. State, 35 Ga. 80 (1800) ; Dickens v. State, 30 Ga. 383 (18(50) ; Jones v. State, 29 Ga. 608 (1800) ; Hood r. State, 50 Ind. 263 (1877) ; Cliiek r. State, 40 Ind. 263 (1872) ; Coleman v. People, 58 X. Y. 555 (1874) ; Weed v. People, 56 X. Y. 628 (1874) ; Copperman v. People, 56 N. Y. 591 (1874) ; Weyman v. People, 6 T. & C. (X. Y.) 096 (1875) ; Hill v. State, 5 Tex. A pp. 2 (1879); Rex u. Woodburnc, 10 How. St.Tr. 54 (1722). SEC. 29.] KINDS OF HOaUCIDE. 31 and where the act intended is unlawful, the possible' conse- quences also.i Thus, if a man, out of malice, attempts to shoot one person and missing him kills another,^ he will be guilty of murder or manslaughter the same as he would have hetn liad he killed the man intended.^ And it has been said that if one shoots Avith intent to make a horse throw his rider, and kills a person standing near by;* or if one in a sudden quarrel kills a stranger,^ it is murder. And if an illegal act produce harm not intended, the perpetrator will be held responsible for all consequences;^ thus, if a man shoots at a person, mistaking his identity, and wound another, he may be convicted of shooting or wounding with intent to kill ; "> and we have seen above that if he kills such third person it is murder. Intent is to be inferred from the external circumstances accompanying the crime and the instrument or means made use of in the commission of the homicide, and the sound mind and discretion of the accused.^ Thus, the intent to kill a person will be inferred from the homicide itself,^ where the killing is shown to have been done by the use of a deadly weapon.i*' 1 Studstill r. State, 7 Ga. 2 (1849). - People V. Keet'er, 18 Cal. (JoQ (1801) ; Commonwealth v. Webster, 59 Mass. (5 Cush.) 306 (1850) ; State V. Smith, 2 Strobh. (S. C.) L. 77 (1847); Rex V. Huggins, 2 Ld. Raym. 1581 (1730) ; Reg. v. Mawgridge, Kelynge, 119 (1065). 2 GoUiher v. Commonwealth, 2 Duv. (Kj\) 163 (1865) ; State v. Raymond, 11 Nev. 98 (1876); State v. Cooper, 13 N. J. L. (1 J. S. Gr.) .381 (1833) ; State V. Benton, 2 Dev. & B. (N. C.) L. 196 (1836) ; State v. Fulkerson, 1 Phil. (X. C.) L. 233 (1867); AVare- ham V. State, 25 Ohio St. 601 (1874) ; Callahan v. State, 21 Ohio St. 300 (1871); Anr/ell v. State, 36 Tex. 542 (1872); s.c. 1 Gr. Cr. Rep. 053; Rex V. Holt, 7 Car. & P. 519 (18.30) ; Rex V. Plummer, 12 Mod. 627 (1702) ; Post. 261 ; 1 Hale P. C. 379. See Aaron v. State, 31 Ga. 167 (1860) ; Morris v. Piatt, .32 Conn. 75 (1864) ; State v. Johnson, 7 Oreg. 210 (1879); Brat- ton I'. State, 10 Humph. (Tenn.) 103 (1849) ; Reg. v. Lallement, 6 Cox C C. 204 (18-53) ; Rex v. Conner, 7 Car. & P. 438 (1836) ; s.c. 32 Eng. C. L. 695; Levitt's Case, Cro. Car. 538 (1640) ; Post. 262 ; 1 Hawk. P. C. 31, § 44. * State V. Smith, 2 Strobh. (S. C.) L. 77 (1847). ^ United States v. Travers, 2 Wheel. Cr. Cas. (N. Y.) 508 (1814). 6 Meredith v. State, 60 Ala. 441 (1877) ; People v. Honshell, 10 Cal. 83 (1858) ; State v. Stanton, 37 Conn. 421 (1870). " Studstill r. State, 7 Ga. 2 (1849); Ann V. State, 11 Humph. (Tenn.) 159 (1850); State r. Turner, Wright (Ohio) 20 (1831). 8 Hill V. People, 1 Colo. 4-36 (1872) ; Slattery v. People, 76 111. 218 (1875) ; Gatlin v. State, 5 Tex. App. 531 (1879). 9 State V. Lautenschlager, 22 ilinn. 514 (1876). iJ Hill V. People, 1 Colo. 436 (1872). 32 HOMICIDE. [chap. II. While it is true that the intent must co-exist with and prompt the deed in order to render the party culpable,^ yet such intent may be instantaneously formed prior to the commission of the deed, and when so formed the crime is murder.'-^ 1 Clements r. State, 50 Ala. 117 (1874). •^ Tf ople V. Freel, 48 Cal. 430(1874) ; Coinmoiiwealtli v. York, GO JIass. (9 Mete.) m (1845); People r. Clark, 7 N. Y. o85 (1852) ; O'Brien v. People, 48 Barb. (N. Y.) 274 (18(57) ; Laner- gan ;•. People, Park. Cr. Cas. (N. Y.) 209 (18(i:3) ; s.c. 50 Barb. (N. Y.) 260; Walters v. People, Park. Cr. Cas. (N. Y.) 15 (1804) ; Lowenbcrg v. Peo- ple, 5 Park. Cr. Cas. (N. Y.) 414 (1803) ; Shoemaker v. State, 12 Ohio, 43 (1843); Anthony v. State, Mei.ss (Tenn.) 205 (1838). Contra, Donnel- la!i V. Commonwealth, 7 Bush (Ky.) 070 (1870) ; Wilson v. People, 4 Park. Cr. Cas. (N. Y.) 619 (1859) ; Sullivan V. People, 1 Park. Cr. Cas. (X. Y.) 347 (1852); People v. Johnson, 1 Park. Cr. Cas. 291 (1851). CHAPTER III. CRIlSaNAL HOMICIDE. Sec. 30. What constitutes criminal homicide. Sec. 31. Other assaults on deceased — Effect. Sec. 32. Infliction of mortal wound. Sec. 33. Death accelerated by accused. Sec. 34. Proper medical treatment. Sec. 35. Same — Failure to procure medical aid. Sec. 36. Same • — Erroneous medical treatment. Sec. 37. Same — Death from subsequently contracted disease. Sec. 38. Liability for killing by third person — Kioters. Sec. 39. Death by repeated acts. Sec. 40. Death caused through irresponsible agent — Children and idiots. Sec. 41. Same — Letting loose savage animal. Sec. 42. Same — Producing conviction by perjury. Sec. 43. Continuing offences. Sec. 44. Same — Indictment. Sec. 45. Same — Jurisdiction. Sec. 46. Wound inflicted on high seas. Sec. 30. What constitutes criminal homicide. — Criminal homicide consists in the unhiwful taking by one human being of tlie life of another by any wound of which he dies within a j-ear and a day from the time of the giving of the mortal wound. If committed with malice expressed, or implied by law, it is murder; if without malice, it is manslaughter. No })ersonal injury, however grave, which does not destroy life, will constitute either of these crimes. The injury must con- tinue to affect the body of the victim nntil his death. If it ceases to operate and death ensues from another cause, neither murder nor manslaughter has been committed; but if the assault is with a gun or pistol, and the bullet ]"emains in the body so as to press upon or disturb the vital organs and ultimately produces death ; or the wound given, or the poison administered, causes a decline of health ending in death, the injury and death are as much the continuous portion and effect of the unlawful act as if the shot, the stab, or the 3 33 34 HOMICIDE. [chap. III. poison had proven instantly fatal. The unlawful intent with which the wound is inflicted or the poison administered attends and qualifies the act until its final result. No repen- tance or change of purpose after inflicting the injury, or set- ting in motion the force by means of which it is inflicted, will excuse the criminal. If his unlawful act is the efficient cause of the mortal injury, his personal presence at the time of its beginning, its continuation, or its result, is not essential. Thus a person may be guilty of homicide by shooting, even if he stands afar off, out of sight, or in another jurisdiction.^ If a man knowingly lets loose a dangerous beast, which runs any distance and then kills a man ; or incites a madman or a child not of years of discretion to commit murder in his absence, whereby any one is killed ; '^ or with intent to mur- der, leaves poison with another person to be administered to a third, and the poison is administered to another by an inno- cent agent, and causes the death of the person intended, or any other, he is responsible as principal to the same extent as if personally present at the actual killing.^ To constitute a homicide, however, the party killed must have been living at the time the blow was struck or the potion administered,* and the death must be imputed to the act of the defendant,'' and must occur within a year and a day from the time the blow was struck or the poison administered.^ It is not essential that the violence inflicted by the defend- ant should be the sole or immediate cause of the death ;'^ it is 1 Common wealtli v. Macloon, 101 « People v. Kelly, 6 Cal. 210 (1850); Mass. 1, 7 (1809). Sec Peoples. People r. Aro, Cal. 207 (1850); State Adams, 3 Den. (X. Y.) 100, 207 (1840) ; c. MayfieUl, GO Mo. 125 (1877) ; State s.c. 1 N. Y. 170, 179; I Hale P. C. r. Orrell, 1 Dev. (N. C.) L. 139 (1820) ; 475. Ivlmotulson v. State, 41 Tex. 490 2 See post, § 41. (1874) ; 1 Arch. C. P. 751 ; 3 Co. Inst. 3 Reg. V. ]\iicliacl, 9 Car. & P. 350 53 ; Hale P. C. 424. Tlie day on wliieli (1840); s.c.38Eng. C. L. 213; 1 Hale the blow is struck, or the injury is 1*. C. 430, 431, 015, 017; 1 East P. C. inflicted, is to be reckoned as the first 265. day, in computing the time within * United States v. Hewson, 7 Leg. whicl) the death must occur. People Rep. 301. r. Gill, Cal. 037 (1850) ; 1 Hale s Commonwealth v. Costley, 118 P. C. 420. Mass. 1 (1875); Tabler i;. State, 34 " State r. Matthews, -38 La. An. 705 Ohio St. 1.37 (1877); Rex v. Webb, (1880); State v. Smith, 10 Nev. 100 2 Lew. C. C. 190 (18.34) ; Rex v. Tye, (1875). Uuss. & Ky. C. C. 345 (1818). SEC. 31.] CRIMINAL HOMICIDE. 35 sufficient if it is the mediate cause.^ And if a person, by a wrongful act, accelerates the death of another, which would necessarily have soon occurred from an incurable disease, he is guilty of honiicide,^ because a person is deemed to have committed homicide, although his act is not the immediate or not the sole cause of death, in those cases where (1) he inflicts a fatal injury on another which necessitates surgical or medical treatment from which death results ; ^ (2) inflicts a fatal injury on another which would not have caused death if the injured person had submitted to proper surgical treat- ment, or had obeyed his attending physician, or had observed proper precautions as to his mode of living ; * (3) where, by actual violence, a person causes another to do an act which causes his own death, such act being a mode of avoiding such violence, or threats,, which, under the circumstances, would appear fatal to the injured person ; ^ (4) where, by wrongful act, a person hastens the death of another who is suffering under any disease or injury, which, apart from his act, would have caused death ; ^ and (5) where his act or omission would not have caused death unless accompanied by the acts or omissions of the person killed, or some other person.^ Sec. 31. Other assaults on deceased — Effect. — Where the defendant inflicts a fatal blow, he cannot escape liability for his wrongful act from the fact that other blows were subse- quently inflicted by other persons which hastened the death.^ But if one inflicts a mortal wound, and, before death ensues, 1 Stater. Smiti), 10 Nev. 106(1875). & Keg. v. Pym, 1 Cox C. C. 339 See People v. Moan, 65 Cal. 532 (1884); (1846). Williams r. State, 2 Tex. App. 271 ^ See State v. Morea, 2 Ala. 275 (1877). (1841); People v. Moan, 65 Cal. 532 2 State V. Morea, 2 Ala. 275 (1841) ; (1884) ; People v. All Fat, 48 Cal. People r. Moan, 05 Cal. 532 (1884). 61 (1874); Kelley v. State, 53 Ind. 3 See McAllister v. State, 17 Ala. 311 (1876); Rex v. Wehb, 1 Moo. & 4.34 (1850) ; Slate v. Corbett, 1 Jones R. 405 (1834) ; 1 Hale P. C. 428. (N. C.) L. 2()4 (1853) ; 1 Hale P. C ' See Refj. r. Swinrlall, 2 Car. & K. 418. 230 (1846); s.c. 61 Eng. C. L. 229; 4 Bowles r.State, 58 Ala. 3.35ri877); Rep. v. Longbottom, 3 Cox C. C. 439 State V. Bantley, 44 Conn. 537 (1877); (1849) ; s.c. 1 Russ. on Cr. (5th Eng. People V. Cook, 39 Midi. 236 (1878) ; efl.) 830; Reg. v. Ledger, 2 Post. & F. State r. Landgraf, 95 Mo. 97 (1888); 857 (1862); Reg. v. Fletcher (Mss.) Williams V. State, 2 Tex. App. 271 1 Russ. on Cr. (5th Eng. ed.) 676 (1877). (1841). « Tidwell V. State, 70 Ala. 33 (1881). 36 HOMICIDE. [chap. III. another kills the same person by an independent act, without concert or procurement of the one who caused his first wound, the first person cannot be convicted of murder or manslaugh- ter, or assault with intent to kill, on an indictment charging both with murder.i A person is not deemed to have committed homicide, although his conduct may have caused death, (1) where the death does not take place within a year and a day from the time the injury was inflicted;^ (2) where the death is caused by the act of a third person, although such act resulted from or grew out of the defendant's conduct ; '^ (3) where the death is caused without any definite intention of doing fatal injury to the person killed,* and (4) where death is caused by false testimony given in a court of justice.^ « Sec. 32. infliction of mortal wound. — If a wound was so inflicted as to render the inflicter criminal, and death fol- lows, he is amenable for homicide, though the person wounded would have died from other causes, or from the wound irre spective of such other cause, provided the wound really con- tributed, mediately or immediately, to the death.^ And when wounds have been inflicted by one person upon another, and the latter afterwards dies, it is not indispensable to the con- viction of the former of murder or manslaughter, under an indictment based upon the infliction of such wounds, that they were necessarily fatal, and were the direct cause of the death; but if they caused the death indirectly, through a chain of natural causes, unchanged by human action, it is sufficient in this regard.'^ 1 State r. Wood, 5.3 Vt. 500(1881). M?ex v. Self, 1 Leach C. C. 187 - 1 P:ast P. C. 343,344; 1 Kiiss. on (ITTC); )*.c. 1 East P. C. 22(i, 227; Cr. (5tli Eng. ed.)073; 4 Bl. Comm. 1 Kiiss. on Cr. (5th Eng. ed.) (552; 197; 1 Hawk. P. C. 31, § 9. Kex r. Squire, 1 Hnss. on Cr. (5tii 3 Thus rioters are not responsible Eng. ed.) (153 (1700); 1 Hale P. C. for a homicide committed by those 420. attenipting to suppress tiie riot. .But- ^ Rex r. McDaiiiel, 1!) How. St. leri-. People, 125 III. Oil (1888); s.c. Tr. 806 (1755) and note 810-814; K Am. St. Hep. 423; 1 L. M. A. 211 ; Fost. 131. 18 N. E. Hep. 338; Commonwealtli r. "Williams r. State, 2 Tex. App. Campbell, 89 Mass. (7 Allen) 541 271 (1877). (1863) : Rex r. Murphy, 6 Car. vt P. " Kelley v. State, 53 Ind. 311 103 (1833) ; s.c. 25 Eng. C. L, 343, (1876). SEC. 34.] CRIMINAL HOMICIDE. 37 Sec. 33. Death accelerated by accused. — In a case where the indictment is found for murder, if it appear that the death of the deceased was accelerated by the violence of the pris- oner, his guilt is not extenuated because death might and probably would have been the result of the disease with which the deceased was afflicted at the time of the violence.^ Where a person has inflicted wounds upon another which are fatal, and of which the latter dies, or which are dangerous in them- selves, though not necessarily fatal, and cause congestion of the brain, Avhich so induced, causes the exposure of the injured person to the inclemencies of the weather, from the effects of which he dies, it must be deemed that the person wlio gave the wounds caused the death by the infliction of them.^ Thus where A. with a felonious intent inflicted a wound upon B., and within a year and a day death resulted, not from the wound immediately, but mediately, as from inflammation caused by the wound and occasioned by improper treatment on the part of the attendants, it was held that this may be murder in the first or second degree, or manslaughter, as the case may be.^ Sec. 34. Proper medical treatment. — Stephen says that it is immaterial whether the treatment was proper or mis- taken, if it was employed in good faith, and with common knowledge and skill ; but the person inflicting the injury is not deemed to have caused the death if the treatment, which was the immediate cause, was not employed in good faith, or was so employed without common knowledge or skill.* Thus where the wound is adequate and calculated to produce death, it has been held to be no excuse to show that had proper caution and attention been given, a recovery might have ensued, for neglect or maltreatment will not excuse, except in cases where doubt exists as to the character of the wound.^ Where death ensues in consequence of the unlawful act of another, it iis not necessary that the fatal result should have 1 State V. Morea, 2 Ala. 275 (1841). * Stephen's Dig. Cr. L. loG. 2Kelleyy. State, 53 Ind. 311 (1870). 5 MeAilister v. State, 17 Ala. 434 3 Kee r. State, 28 Ark. 155 (1873); (1850); State v. Corbett, 1 Jones B.C. 2 Am. Cr, Rep. 203. (N. C.) L. 265 (1853). 38 HOMICIDE. [chap. III. sprung from an act of commission ; but if defendant omitted any act incumbent on him, from which death resulted to the deceased, if there was no malice it is manslaughter, if there was malice it is murder.^ Sec. 35. Same — Failure to procure medical aid. — It has been said that a person who criminally gives another a wound which is not necessarily fatal, and who wilfully neglects to procure aid and surgical attendance, in conse- quence of which failure the injured person dies, such person will be guilty of homicide the same as if the wound had been in itself a fatal one. The fact that the friends and family of the deceased were present at the occurrence, it seems, makes no difference.^ Sec. 36. Same — Erroneous medical treatment. — It has been held, however, that the person causing the original wound is not responsible for death resulting from grossly erroneous medical or surgical treatment ; ^ but the soundness of this doctrine is very much questioned. It is the well-established rule that every man is presumed to intend the natural conse- quences of his acts, and where one does an illegal act he is responsible for all the consequences that legitimately flow therefrom. Where a party, by his wrongful act, makes the calling of a surgeon or a physician necessary, the party com- mitting the wrongful act, anpose, because of 665 (1831); s.c. 19 Eng. C. L. 052; the difficulty of proof. SEC. 39.] CRianNAL HOMICIDE. 41 " They are no more ' secret things belonging to God ' than the operation of arsenic. As to the fear that by admitting that such acts are murder, people might be rendered liable to prosecution for breaking the hearts of their fathers or wives by bad conduct, the answer is that such an event could never be proved. A long course of conduct gradually ' breaking a man's heart,' could never be the direct or innnediate cause of death. If it was, and it was intended to have that effect, why should it not be murder? In Reg. v. Towers,^ a man was convicted of manslaughter, for frightening a child to death." 2 Lord Hale doubts whether voluntarily and maliciously infecting a person of the i^lague, and so causing his death, would be murder,^ but it is hard to say Avhy. He argues that "infection is God's arrow." A different view was taken in the analosrous case of lleg;. v. Greenwood.* In this case the prisoner was indicted for the murder of a child under ten. On the trial it appeared that he had had carnal connection with her and given her a venereal disease of which she after- wards died. The court told the jury that if they were of the opinion that the prisoner had had connection with the deceased girl, and that she died from its effects, then the act being, under the circumstances of the case, a felony in point of law, this would of itself be such malice as would justify them in finding a verdict of murder.^ In one case it is said : " The court are of the opinion that murder may be committed in the manner set forth in this indictment. It is unusual, but we cannot say it is impossible, or that the evidence will not sustain it. Take the case of poisoning referred to in Hawkins' Pleas of the Crown, where poison is administered at different times. Murder is the result, and it is proper to set forth in the indictment that it was committed by poison administered at various times. Take a case of starvation : a person may be deprived of food at various times, and so reduced as to produce death ; the 1 12 Cox C. C. [>m (1870). * 7 Cox C. C. 404 (1857) ; s.c. 1 2 See Whart. on Horn. (2d ed.) Russ. on Cr. (otli Eng. ed.) 673. § 372. As to responsibility for death ^ The prisoner was found guilty of caused thus indirectly, see ante, § 2. manslaughter. 3 1 Hale P. C. 432. 42 HOMICIDE. [chap. hi. proper mode of setting forth the offence would be that the person came to his death by being deprived of food at various times." 1 Sec. 40. Death caused through irresponsible ag^ent — Children and idiots. — Where a child, without discretion, an idiot or a madman, is induced by a third person to commit homicide, the instigator alone is guilty, and although not present at the perpetration of the crime, he is liable to the same extent as if personally present ;2 and this is so even though such third person Avere at the time in another juris- diction.^ This is on the common law principal qui facit per alium^facit per se, which, according to Connecticut authority, "is of universal application both in criminal and civil cases." ^ Sec. 41. Same — Letting loose savage animal. — It was formerly held that a man who had a beast that is used to do mischief, and he knowing it, suffers it to go abroad and the animal kills a man, the owner is guilty of manslaughter.^ And it is agreed on all hands that such a person is guilty of very gross misdemeanor.^ But a man who lets loose such an animal with a knowledge of its vicious propensities, and it kills a man, at common law he is guilty of murder,^ the same as if he had incited a dog or a bear to worry people where it was done merely to frighten them and make what is called sport ; ^ and this is true in all cases where the party was in such a 1 Rorr. V. Bird, T. & M. 4;]7 (1851); s.c. 2 Eng. L. & Eq. 448 ; 3 Chitt. Cr. L. 777 ; ;J Ct). Inst. 50. 2 Conimotnveiilth v. Hill, 11 Mass. 13G (1814) ; People v. Adams, 3 Den. (N. Y.) 190 (1846) ; s.c. 45 Am. Dec. 408, 470 ; Keg. v. Michael, 9 Car. & P. 350 (1840); s.c. 38 Eng. C. L. 213; 1 Chit. Cr. L. 1!>1 ; 1 Hawk. P. C. (Curw. ed.) 92; Foster's Cr. L. 343; 1 Hale P. C. G17 ; Stephen's Cr. L. 7, 141. See }wst, § 108. 3 Commonwealth i\ Maeloon, 101 Mass. 1 (1809) ; People >: Adams, 3 Den. (N. Y.) 190 (1840); Rex v. Cooper, 5 Car. & P. 535 (1833); s.c. 24 Eng. C. L. 094; Reg. v. Bnll, 1 Cox C. C. 281 (1845) ; Res.', r. Man- ley, 1 Cox C. C. 104 (1844) ; Reg. v. Vallcr, 1 Cox C. C. 84 (1844) ; Rex i;. Brisac, 4 East, 164 (1803) ; Reg. v. Bannen, 2 Moo. C. C. 309 (1844); Reg. V. Michael, 2 Moo. C. C. 120 (1840). ■* Barkhamsted v. Parsons, 3 Conn. 8 (1817). See People v. Adams, 3 Den. (N. Y.) 190 (1846); s.c. 45 Am. Dec. 408, 470. 5 4 Bl. Comm. 197. ^ 1 Russ. on Cr. (5th Eng. ed.) 602; 1 Hawk. P. C. 31, § 8. " Commonwealth '•. Macloon, 101 Mass. 1, 7 (1869); Reg. v. Dant, 10 Cox C. C. 102 (1865) ; s.c. Leigh & C. 567. The same is true by the Jewish law. See Exod. c. xxi. v. 29. >* 4 Bl. Comm. 197; Palm. 431; 1 Hale P. C. 430. SEC. 42.] CRIMINAL HOMICIDE. 43 position that he should have known the vicious tendencies of the animal.^ In those cases where tlie mischief was unin- tended by the defendant, the crime is manslaughter ; in those where designed, it is murder. Sec. 42. Same — Producing conviction by perjury. — It seems that by the ancient common law, the bearing false wit- ness against another with an express and premeditated design to take away his life so that the innocent person be con- demned and executed, was murder.^ Much doubt has been entertained in modern times whether this Avas ever truly the law.3 Certain it is that a very long period has elapsed since this has been holden to be murder. The last case on record of a prosecution for this offence, is that of Rex v. Macdan- iel,* whereia Macdaniel, Berry, and Jones were indicted for murder upon a conspiracy to encompass the death of one Kidden, who had been convicted and executed for a robbery upon the highway, upon the evidence of Berry and Jones ; they were convicted and judgment was respited in order that the point of, law might be more fully considered upon a motion in arrest of judgment. Russell says ^ that the attor- ney-general declined to argue this point for prudential reasons, and the prisoners were therefore dismissed. The principal reason why the attorney-general refused to argue this point seems to have been the fear that witness might be deterred from giving evidence upon capital prosecutions, if it must be at the peril of their own lives.^ While it is true that, as Russell says,' in foro conscientice, this offence is beyond doubt of the deepest malignity,^ yet it is equally true, as Bishop says,^ that " perjury is an offence different from murder ; the inflicting of a capital punishment by officers of the law in conformity to a judicial record can hardly be deemed the act of the false witness ; and should 1 See Whart. on Ne?. § 904 et seq. ^ Fost. C. C. 131 (1756) ; s.c. 2 See 1 Russ. Cr. (5th Enc^. ed.) 1 Leach C. C. 44. 662; 1 Bish. Cr. L. (7th ed.) 564; ^ i Russ. Cr. (5th Engr. ed.) 662. 4 Bl. Comm. 196; Mirror, c. 1, § 9; ^ See 4 Bl. Conim. 196, note (g) ; Brit. c. 52 ; Bract, lib. 3, c. 4 ; 1 Hawk. 1 East P. C, c. 5, § 94, p. 333, note (a). P. C, c. 31, § 7 ; 3 Co. Inst. 91. ' 1 Russ. Cr. (5th Eng. ed.) 660. 3 1 Russ. Cr. (5th Eng. ed.) 662; » See Deut. c. xix. v. 16 et seq. 1 Bish. Cr. L. (7th ed.) 564. ^ 1 Bish. Cr. L. (7th ed.) 564. 4-i HOMICIDE, [chap. III. we undertake to regard the government as the innocent agent of the witness, there is a difficulty in making the act and intent appear concurrent in point of time, because he has lost power over this agent, and he cannot prevent the execution if he repents." Sec. 43. Continuing offences. — A person who unlaw- fully sets tlie means of death in motion, whether through an irresponsible instrument or agent, or in the body of the victim, is the guilty cause of the death at the time and place at which his unlawful act produces its result ; and, accord- ing to the great weight of authority, may then and there be tried and punished, under express statute, if not by the common law.^ A similar doctrine prevails in California,^ Michigan,^ and Tennessee ; * but a contrary doctrine seems to prevail in New Jersey, where it has been held that where a blow was struck in New York and the death occurred in New Jersey, an enactment allowing the party who gave the blow to be prosecuted in New Jersey "upon general principles would necessarily be void: it would give to the courts of this state jurisdiction over all the subjects of all the governments of the earth, with power to try and punish them, if they could by force or fraud get possession of their persons, in all cases where personal injuries are followed by death. . . . No act is done in this state by the defendant. He sent no missile or letter or message that operated as an act within tins state. The coming of the party injured into this state afterwards was his own voluntary act, and in no way the act of the defendant. . . . An act, to be criminal, must be alleged to be an offence against the sovereignty of the government. This is the very essence of crime puuisliable by human law. How can an act done in one jurisdiction be an olfence against tlie sovereignty of another?"^ It seems that anciently the courts doubted whether, if a blow were struck in one country and death ensued in another, ' Commonwealth r. Mac-loon, 101 Mich. 472 (1850) ; People r. Tyler, Mass. 1, 7 (1809). See Grosvenor v. 7 Mieli. 101 (185i)). St. Ausustine, 12 East, 2U (1810). ■» Riley i-. Stjite, !» Iluinpli. (Tenn.) 2 People V. Gill, Cat. 0;]7 (1856). 040. 057 (1849). ■■' Tyler v. Pe<.ple, 8 Mich. .'^'O, :}.]4 ^ State v. Carter, 27 N. J. L. (3 (18G0). See Bromley v. People, 7 Dutch.) 499, 500, 501 (1859). SEC. 44.] CRIMIXAL HOMICIDE. 45 the offence could be prosecuted in either, though the more common opinion was that the party offending might be indicted in the country where the blow was given.i The difficulty was overcome, however, by carrying the dead body back into the country where the blow was struck, that the jury might there inquire both of the stroke and tlie death.^ The general doctrine now is that the blow or act is " mur- der or not, according as it produces death within a year and a day or not : ^ and therefore in all cases an indictment lies in the country where the blow was given." * Sec. 44. Same — IiHlictinent. — Where a blow is struck in one jurisdiction, and death occurs in another, the crime not being murder nor manslaughter before the death, an indict- ment alleging the stroke at one day and place, and the death at another day and place, is good if it alleges the murder or manslaughter to have been at the time and place of the death, but bad if it alleges that the defendant killed and murdered the deceased at the day and place at which the stroke was given ; for, in the words of Lord Coke, " though to some purpose the death hath relation to the blow, yet this relation, being a fiction in *law, maketh not the felony to be then committed." ^ So the year and day " after the deed — apres le fait,'" within which, by the statute of Gloucester, an appeal of murder must be brought, Avas held not to run from the blow, but from the death ; " for before that time no felony was committed."^ And manslaughter arising out of a blow struck in one county, followed by death in another, was held by Mr. Justice Littledale to be a felony " begun in one county and completed in another," within the meaning 1 See 1 Hale P. C. 426; 1 East 182, 185 (1848); Rex r. Ilarjrrave, P. C. pp. Sm, 363 et seq.; 3 Co. Inst. 6 Car. & P. 170 (1831); s.c. 24 Eng. 48 : 1 Hawk. P. C. (6th e) ; .s.c. .8 Am. Dec. 17; Wat- U) Hen. Vir. 10, pi. 7; 8 Inst. 48, son v. State, 3t) Miss. 593 (1859); 49; 2 Hale ]'. C. 108; 1 Stark Cr. I'l. State r. Brown, 1 Hay. (N. C.) 100 8 and notes. (1794); s.r. 1 Am. Dec. 548; Hamil- 6 State V. Ellis, 8 Conn. 180 (1819) ; ton r. State, 11 Ohio 485 (1842). 8.C. 8 Am. Dec. 175; Ferrill r. Com- SEC. 45.] CRIlVriNAL HOMICmE. 47 maintain a contrary doctrine.^ Statutes conferriiig such jurisdiction have been held to be constitutional.^ The question as to the jurisdiction, where an act is com- menced in one country and terminated in another, as where a blow is struck in one country and the victim dies in another, has been much discussed in England and America. The earlier cases are fluctuating and unsatisfactory.^ The United States courts hold that such jurisdiction does not exist unless conferred by statute.* State statutes conferring such jurisdiction have been held to be constitutional by the various state courts.^ The general principle that a person who does a criminal act in one country is liable for its continuous operation in another, has been frequently affirmed. Thus, a person stand- ing on the Canada side of the Niagara river, and shooting at and killing a person on the American side, will be amenable to the laws of the place where the man died ; ^ but not until he, is personally wathin the jurisdiction of such country.'^ Thus, where one man struck another a fatal blow in Canada and the latteV died in Michigan, he was lield to be answerable in Michigan.^ Statutes conferring such jurisdiction are founded upon the general power of the legislature, except so far as restrained by the constitutions of the commonwealth and the United States, to declare any wilful or negligent act which causes an injury to person or property ^vithin its territory to be a crime, and to provide for the punishment of the offender upon being apprehended within its jurisdiction.^ 1 State V. Carter, 27 N. J. L. (3 ° State v. Seay, Pj Stew. (Ala.) 123 Dutch.) 500 (1859) ; State v. Le- (1830) ; Commonwealth v. Maeloon, Blanch, 31 N. ,J. L. (2 Vr.) 82 (1864) ; 101 Mass. 1 (1809) ; Tyler v. People, Simmons v. Commonwealth, 5 Binn. 8 Mich. 326 (1860); Hemmaker v. (Pa.) 619 (1813). State, 12 Mo. 453 (1849); People v. 2 Beal V. State, 15 Ind. 378 (1860) ; Burke, 11 Wend. (X. Y.) 129 (18.34). Simmons v. Commonwealth, 5 Binn. « State v. Wyckoff, 31 N. J. L (2 (Pa.) 619 (1813); Simpson v. State, Vr.) 68 (1864), Commonwealth i-.Mac- 4 Humph. (Tenn.) 461 (1844). loon, 101 Mass. 1 (1869) ; United States 3 See Co. Litt.74 b; 3 Co. Inst. 48; v. Davis, 2 Sumn. C. C. 482 (1837). Hale, 426, 500; 2 Hale P. C. 20, 163. " Reg. v. Garrett, 6 Cox C. C. 260 * United States v. ArmstrnnEr. 2 (1853). Curt. C. C. 446 (1855) ; United States » Tyler r.People, 8 Mich. 326(1860). I-. McGill, 4 Dall. C. C. 427 (1806) ; •' Commonwealth v. Macloon, 101 s.c. 1 Wash. C. C. 463. Mass. .1, 5 (1869). 48 HOMICIDE. [chap. III. It has been said that whenever any act is committed partly in and partly out of a jurisdiction, the question is whether so much of the act as operates in the country or state in which the offender is indicted and tried has been declared to be punishable by the law of the jurisdiction.^ Sec. 46. Wound inflicted on high seas.^ — In the case of Commonwealth v. Macloon,^ it was held that a citizen of another state or foreign country may be convicted under the Massachusetts statute ^ of the manslaughter of a person who dies within that state of injuries inflicted upon him by the accused upon a foreign merchant vessel upon the high seas. It has been held by the Supreme Court of the United States, however, that where a stroke is given on the ocean and the injured person dies on land, that this does not constitute " murder committed on the high seas " within the meaning of the act of Congress.^ While it is true that penal laws are local, yet an offence may be committed in one sovereignty or state in violation of the laws of another sovereignty or state. In su^h a case, if the offender is afterwards found in the state where the offence was committed, he may be there punished according to the laws which he has violated.^ The English statute provides that Avhere the felony or misdemeanor is begun in one country and completed in another, the venue may be laid in either country through which the passenger, carriage, or vessel passed." 1 Commnnwealth v. Macloon, 101 Vr.) 05 (1804); Adams r. People, 1 Mass. 1, 5 (1809). N. Y. 173 (1848) ; s.c. 3 Den. (N. Y.) ■■^ See ;)os^ § 1-22. 190; 45 Am. Dec. 408; Coninioii- 3 11)1 xMass. 1 (1809). wealth v. Gillespie, 7 Serg. & K. (Pa.) < Mass. Gen. Stats, c. 171, § 19. 409 (1822) ; Reg. v. Garrett, Cox •''See United States v. Magill, 1 C C. 200 (185o). See Commonwealth Wash. C. C. 403 (1800) ; s.c. snh nom. r. Macloon, 101 Mass. 1, 7 (1809). United States v. McGill, 4 U. S. (4 " See 7 Geo. IV. c. 04, §§ 12, 13; Dall.) 426 (1800) ; bk. 1 L. ed. 894. 1 Vict. c. 30, § 37. « State i: Wyckoff, 31 N. J. L. (2 CHAPTER IV. SUICIDE. Sec. 47. Definition. Sec. 48. Who may commit suicide. Sec. 49. Suicide as evidence of insanity. Sec. 50. Same — Lucid interval. Sec. 51. Aiding and abetting. Sec. 52. Accidental killing. Sec. 53. Accessories before the fact. Sec. 54. Same — Absence when act committed — Effect on Criminality. Sec. 65. Abortion — Killing in producing. Sec. 56. Same — Causing pregnant woman to take poison. Sec 57. Same — Supplying drugs to pregnant woman without causmg her to take them. Sec 58. Attempts to commit suicide. Sec 59. Consent of deceased. Sec 60. Punishment for suicide. Sec. 47. Definition. — Suicide is a murder committed by a man on himself, either in pursuance of a fixed intention, or in committing or attempting to commit an unhxwful, mali- cious act, the consequence of which is his own death. ^ Thus if a person in attempting to kill another runs upon his antag- onist's sword ; or shooting at another with intent to kill him, the gun bursts and kills himself, he is a felo de se.^ It has been said that the distinctions between murder and man- slaughter attach to suicide, so far as they are applicable, as well as to the killing of others ; ^ but there is high authority for saying that a person cannot commit manslaughter on himself.* By the common law of England, suicide was considered 1 4 Bl. Comm. 189 ; Harris' Cr. L. * Reg. v. Burgess, 9 Cox C C. 247 161. (1862) ; s.c. L. & C. 258 ; per Pollock, 2 4 Bl. Comm. 189 ; 1 Hale P. C. C. B., and Williams, J. ; referring to 413; Harris' Cr. L. 162. Jarvis on Coroners, App. 322, note 4. See 3 Stephen's Hist. Cr. L. 162. 4 49 60 HOMICIDE. . [chap. IV. as a crime both against the laws of God and man ; the " one spiritual in evading the prerogative of the Almighty, and rushing into His immediate presence uncalled for; the other temporal, against the King, who hath an interest in the pres- ervation of all his subjects ; and the law has therefore ranked this among the highest crimes." ^ Sec. 48. Who may commit suicide. — Only such persons as have arrived at years of discretion and are possessed of a sound mind and capable of measuring their moral responsibil- ity can commit the crime of suicide, because the act is other- wise no crime at all.^ In the case of Connecticut Mutual Life Insurance Company v. Groom* the court say: "Self- destruction, under insane impulses so strong as to be beyond the control and restraint of the will, is a result produced by disease, for which the victim of it is no more morally respon- sible than he would be for any other of the maladies of which men die. The disease, when it manifests itself in the form ot melancholia, which creates a prevailing propensity to sui- cide, consists in the unfounded and morbid fancies of the sufferer regarding his means of subsistence or his position in life, or in distorted conceptions of his relations to society or his family, of his rights or duties, or of dangers threatening his person, property or reputation. ' When the melancholic hallucination has fully taken possession of the mind,' says 1 4 Bl. Comm. 189. It has been said 2 4 51 Comm. 189. See Connecti- that the crime of suicide has, during cut Mut. Life. Ins. Co. v. Groom, 86 the last twenty years, become of direct Pa. St. 92, 97 (1878) ; s.c. 27 Am. Rep. interest to the governments of those 689; also Philips v. Louisiana Equi- countries where the whole able-bodied table Life Ins. Co., 26 La. An. 404 male population are, more or less, (1874) ; s.c. 21 Am. Rep. 549 ; Cooper under the control of a military organ- v. Massachusetts Life Ins. Co., 102 ization; for, rightly or wrongly, a Mass. 227 (1869) ; s.c. 3 Am. Rep. 451, portion of the recent considerable and note 454; Van Zandti-. Mutual Life increase in the suicide rate of Prus- Ins. Co., 55 N. Y. KiO (1873); s.<,'. 14 sia, Sa.\-ony, Austria, and France, is Am. Rej). 215; Phadenhauer r. Germa- thought to be attributable to dislike nia Life Ins. Co., 7 Ileisk. (Tenn.) 567 of military service This conclusion (1872) ; s.c. 19 Am. Rep. 623, and note is arrived at, because of the fact that 628; Mutual Life Ins. Co. of N. Y. v. tlie suicide rate among the soldiers is Terry, 82 U. S. (15 Wall.) 580 (1872) ; high in all countries. See article by bk. 21 L. ed. 236. Dr. Olgc in the ".Journal of the Sta- » 86 Pa. St. 92, 97 (1878); s.c. 27 tistical Society," V^)l. Xi-IX., Manli Am. Rep. 689, 691. 1886; and also that of W. H. Millar in same, Vol. XXXVII. SEC. 49.] SUICIDE. 51 Abererombie, ' it becomes the sole object of attention, without the power of varying the impression or of directing the thoughts to any facts or considerations calculated to remove or palliate it. The evil seems overwhelming and irremediable, admitting neither of consolation nor hope. For the process of mind calculated to diminish such an impression, or even to produce the hope of a palliation of the evil, is precisely that exercise of mind which, in this singular condition, is lost or suspended, namely, the power of changing the subject of thought, of transferring the attention to other facts or con- siderations, and of comparing the mental conditions with these, and with the actual state of things. Under such a conviction of overwhelming and hopeless misery, the feeling naturally arises of life being a burden, and this is succeeded by a determination to quit it. When such an association has once been formed, it also fixes itself upon the mind, and fails to be corrected by those considerations which ought to remove it.' " ^ Sec. 49.' Suicide as evidence of insanity. — It is thought, however, that the excuse of insanity should not be carried to such a length that the very act of suicide itself be consid- ered as evidence of insanity, as though every person who acts contrary to reason had no reason at all, because this line of argument would prove every other criminal no7i cotnpos mentis as well as the self-murderer.^ Homicidal insanity should not be assumed without satis- factory proof,^ and should be recognized only in the clearest cases, and an attempt at suicide, of itself, should not be re- garded as evidence of the fact of insanity, and should not raise a legal presumption thereof. This fact, however, may be considered by the jury in connection with other facts and circumstances bearing on the question of insanity.* 1 See Whart. & Stille's Med. Jur. 283; Lawson's Insan. 146; Ortwein § 20G. (,. Comiiionwealtli, 76 Pa. St. 414 2 4 Bl. Comm. 189. (1874) ; s.c. 18 Am. Rep. 420; 1 Am. 3 Coyle r. Commonwealth, 100 Pa. Cr. Pep. 297 ; Lawson's Insan. 438. St. 573 (1882) ; s.c. 45 Am. Rep. 397 ; * Coyle v. Conmionwealtli, 100 Pa. 4 Cr. L. Mag. 76; Lawson's Insan. St. 573 (1882); s.c. 45 Am. Rep. 441 ; Lynch v. Commonwealth, 77 Pa. 397 ; 4 Cr. L. Mag. 76 ; Lawson's Insan. St. 205 (1874); s.c. 1 Am. Cr. Rep. 441. 62 HOMICIDE. [chap. IV. Sec. 50. Same — Lucid interval. — It is not every fit of despondency or melancholia that deprives a man of the ca- pacity of discerning right from wrong, which is necessary to form a legal excuse ; and hence where a real lunatic kills him- self in a lucid interval he is afelo de se as much as any man.i Sec. 51. Aiding- and abetting-. — Suicide is held to be murder so fully that every one who aids or abets in the act is guilty of murder.'-^ Where one advises another to kill himself, and the deed is committed in the presence of such person, he becomes guilty as a principal,^ even though it was voluntarily submitted to by the deceased.* Thus it was held in a recent case that if two persons enter into an agreement to commit suicide together, and the means employed to pro- duce the death prove fatal to one only, the survivor is guilty of murder.''^ It has been contended that the language of 1 4B1. Comm. 189 ; Hale P. C. 412. But it has been said that a self-killing by an insane person, understanding the physical nature and consequence of the act, but not the moral aspect, is not a death by suicide within the meaning of the condition that a policy of insurance upon liis life shall be avoided in case he shall die by sui- cide. Accident Ins. Co. v. Crandal, 120 U. S. 530 (1887); bk. 30 L. ed. 740 ; Manhattan Ins. Co. v. Brough- ton, 109 U. S. 121, 127-132 (1883) ; bk. 27 L. ed. 878. See also Article 21 Cent. L. J. 378-381 ; 25 Am. L. Reg. 386-390. 2 3 Stephen's Hist. Cr. L. 104. * See Commonwealth v. Dennis, 105 Mass. 1(52 (1870) ; Blackburn v. State, 23 Ohio St. 146 (1872); Keg. V. Alison, 8 Car. & P. 418 (1838) ; s.c. 34 Eng. C. L. 813; Rex v. Hughes, 5 Car. & P. 126 (1832) ; s.c. 24 Eng. C. L. 486 ; Re.v v. Dyson, Russ. & Ky. C. C. 523 (1823); 1 East P. C. 228, 229. * Rex V. Sawyer, 1 Russ. Cr. & M. 670 (1815) ; s.c. Russ. & Ry. 294 ; Rex V. Dyson, Russ. & Ry. C. C. 523 (1823). 5 Reg. V. Jessop, 10 Cr. L. Mag. 802 (1887). See Reg. v. Alison, 8 Car. & P. 418 (1838) ; s.c. 34 Eng. C. L. 813; Rex r. Sawyer, 1 Russ. Cr. & M. 670 (1815) ; s.c. Russ. & Ry. 294 ; Rex I'. Dyson, Russ. & Ry. C. C. 523 (1823). In Reg. V. Jessop, 10 Cr. L. Mag. 802 (1887), at the trial, statements made by the prisoner to policemen and others subsequent to the taking of the laudanum were put in evidence against him, and were substantially as follows : " We had arranged to kill ourselves. Jack Allcock said to me, 'I am going to kill myself; sha'n't you die witii me?' I said, ' I'm not particular.' " It was further proved tliat the prisoner and Allcock went together from Gedling, Allcock hav- ing previously bought some laudanum which he jxiured into a large bottle. At Nottingliam the prisoner bought small quantities of laudanum at dif- ferent chemists' shops, Allcock re- maining outside whilst the purchases were made. Allcock also bought laudanum in the same way, the pris- oner remaining outside. All the laudanum so bought was poured into tlie large bottle, and the two men then returned to Gedling and went into the barn. The prisoner stated that he first drank more than half tlie lauda- num, and Allcock then complained SEC. 51.] SUICIDE. 53 Justice Patterson ^ in stating the law on this subject points to the necessity of a consideration for such an agreement in order to constitute the survivor guilty of murder ; but in the recent case of Reg. v. Jessop,^ where this question was raised by the defence, it is said that this is not the law of the land. Where a person is charged in an indictment with aiding, abetting, or encouraging a suicide, it is not necessary for the prosecution to prove that the deceased would have committed suicide without the defendant's counsel or co-operation .^ Thus in the case of Reg. v. Alison"* a man and a woman, unmarried, but who passed as man and wife, being in want, agreed to com- mit suicide ; whereupon the man procured laudanum, which was taken by both, resulting in her death only. The presid- ing judge observed: "There is an old case, which occurred as far back as the reign of James I., which was similar to the present. In that case a husband and wife, being in extreme poverty and great distress of mind, were conversing together on their unfortunate condition, when the husband said, ' I am weary of life, and will destroy myself,' upon which the wife replied, 'If you do, I will, too.' The man then went out, and having bought some poison he mixed it with some drink, and they both partook of it. The draught was fatal to the husband, but the wife, in her agony from the effect of poison, seized a flask of salad oil and drank it off, which caused a sickness of the stomach, and the consequence was that she that the prisoner was getting more The entering into tlie agreement to than his share; that he (the prisoner) kill themselves was illegal. It is thereupon handed the bottle to All- contrary to the law of the land to cock, who drank off the remainder of commit suicide, and if two persons the laudanum ; and that he heard meet together and agree so to do, and AUcock breathing heavily during the one of them dies, it is murder in the night, but that lie (the prisoner) never other." The prisoner was found went to sleep. On the following guilty and sentenced to death, but morning the prisoner was seen hang- afterwards respited, ing over a gate outside the barn, very i In Reg. v. Alison, 8 Car. & P. 418 ill. AUcock was found in the barn, (1888) ; s.c. 34 Eng. C. L. 813. and died during the day. The court - 10 Cr. L. Mag. 862,864 (1887). instructed the jury that "a person ^ Commonwealth v. Bowen, 13 who administers poison to another Mass. 350 (1816) ; s.c. 2 Wheel. Cr. with the intention of killing him, is Cas. 220. See Commonwealth v. guilty of murder if that person dies; Mink, 123 Mass. 422, 427 (1877). and if two persons agree tliat they *8 Car. & P. 418 (1838); s.c. 34 will each take poison, each person is Eng. C. L. 813. a principal, and each is guilty ... 54 HOMICIDE. [chap. IV. voided the poison and lier life was saved. She was tried for the murder of her husband in this very court, and acquitted, but solely on the ground that being the wife of the deceased she was under his control; and inasmuch as the proposal to commit suicide had been first suggested by him, it was con- sidered that she wiis not a free agent, and therefore the jury, under the direction of the judge who tried the case, pro- nounced her not guilty." The judge further said, " I should not be discharging my duty if I did not tell you that, suppos- ing the parties in this present case mutually agreed to commit suicide, and one only accomplished that object, the survivor will be guilty of murder in pomt of law." The jury returned a verdict of guilty.^ In the case of Rex v. Dyson ^ the prisoner was indicted for the murder of a woman by drowning her. On the trial it appeared that the prisoner and the deceased had cohabited together several months previous to her death, and that she was with child by him ; that in a state of extreme distress, being unable to pay for their lodgings, and having no place of shelter, they went to Westminster bridge to drown them- selves in the Thames river. Here they got into a boat, and there talked together for some time, the prisoner standing with his foot on the edge of the boat and the woman leaning upon him. They tumbled into the water, whether from acci- dent or design the evidence did not show. The man scram- bled back into the boat, and when he found the woman was gone, endeavored to save her, but he was unable to do so before she was drowned. The prisoner stated before the magistrate that he intended to drown himself, Imt dissuaded the woman from following his example. The judge instructed the jury that if the man intended to drown himself and not that the woman should be with him, they should acquit ; but that if they believed that they both went to the river for the purpose of drowning themselves together, and each encour- aged the other in the act, the survivor was guilty of murder. The judge also instructed the jury that although the indict- ment charged the prisoner with throwing the deceased into 1 Reg. .;. Alison, 8 Car. & P. 418 23 Car. & P. 424 (1838); s.c. (1838) ; s.c. 34 Eng. C. L. 813, Kuss. & Ky. C. C. 523. SEC. 52.] SUICIDE. 55 the water, yet, if they found that he was simply present at the time she threw herself in, and consented to her doing so, the act of the deceased was to be considered as the act of both and they should convict. The jury found that the pris- oner and the deceased went to the river for the purpose of drowning themselves, and the prisoner was convicted. The case was afterwards submitted to the judges who held that, if the deceased threw herself into the water by the encour- agement of the prisoner, and because she thought he had set her the example in pursuance of their previous agreement, he was a principal in the second degree and guilty of murder. But there being some doubt whether the deceased had fallen in by accident, it was not murder in either of them, and the prisoner was recommended for a pardon. There are other English cases which lay down the principal that where parties mutually agree to commit suicide and one only accomplishes that object, the survivor will be guilty of murder in point of law.^ Thus where a man and woman, who pass for husband and wife, being in great distress, agreed with each other to take poison and each took a quantity of laudanum in the presence of the other, and lay down together, wishing to die in each other's arms, and the woman died but the man recovered, he was held guilty of murder.^ Sec. 52. Accidental killing-. — It is said by the Supreme Judicial Court of Massachusetts, in the case of Common- wealth V. Mink,3 that although suicide is no longer a felony under the Massachusetts statutes, yet it is unlawful and crimi- nal as malum in se, and that an attempt to commit it is un- lawful and criminal. Hence if a person who has attempted to commit suicide accidentally kills another who tries to pre- vent its accomplishment, he is guilty at least of manslaughter, if not of murder.* 1 Reg. V. Alison, 8 Car. & P. 418 nihan v. State, 70 Iiul. 126 (1880) ; (1838) ; s.c. 34 Eng. C. L. 813 ; Anon. s.c. 36 Am. Rep. 178 ; State v. Hardie, cited 8 Car. & P. 23. 47 Iowa, 647 (1878) ; s.c. 20 Am. Rep. 2 Reg. V. Alison, 8 Car. & P. 418 496; Sparks r. Commonwealth, 3 Bush (1838) ; s.c. 34 Eng. C. L. 813. (Ky.) Ill (1867); State r. Emery, 3 123 Mass. 422 (1877); s.c. 25 78 Mo. 77 (1883); s.c. 47 Am. Rep. Am. Rep. 109. 92; State r.Ludwig, 70 Mo. 412 (1879); * See Washington v. State, 60 Ala. Buel r. People, 78 N. Y. 492 (1879); 10 (1877); s.c. 31 Am. Rep. 28; Hoy- s.c. 34 Am. Rep. 555; Robertson v. 56 HOMICIDE. [chap. IV. Sec. 53. Accessories before the fact. — Suicide admits of accessories before the fact as well as other felonies ; for if one person persuades another to kill himself, and he does so, the advisor is guilty of murder. ^ But at common law there can be no conviction of accessories before the fact to suicide, because the principal must be convicted before a conviction of the accessory is possible, and in suicide there can be no conviction of the principal for the ver}^ sufficient reason that he is beyond the process of the court.^ But by statute in most, if not all, the states, as well as in England, advising another to commit suicide is made a substantive indictable offence.^ It is held in Massachusetts * that whether the advice of the defendant is the exclusive cause of the suicide, is im- material. The court say " the important fact to be inquired into was whether the prisoner was instrumental in the death of deceased by advice or otherwise. The government is not bound to prove that deceased would not have hung himself had defendant's counsel never reached his ear. The very act of advising to the commission of a crime is of itself unlawful. The presumption of law is, that advice has the influence and effect intended by the adviser, unless it is shown to have been otherwise ; as, that the counsel was received with a scoff, or was manifestly rejected and ridiculed at the time it was given." The court further said to the jury that if they were satisfied the deceased, previously to any acquaintance or con- versation with the prisoner, had determined within himself that his own hand should terminate his existence, and that he esteemed the conversation of the prisoner, so far as it affected himself, as mere idle talk, that they should acquit; but that if they found the prisoner encouraged and kept alive motives previously existing in the deceased's mind, and sug- gested others to augment their influence, they should convict. State, 2 Lea (Tenn.) 280 (1870); s.c. Mass. 350 (1810); s.c. 2 Wheel. Cr. 31 Am. Kep. 002 ; Queen v. Martin, Cas. 220 ; State c. Liuhvig, 70 Mo. 412 L. U. 8 Q. B. Div. 54 (1881). (1870); Blackburn v. State, 23 Ohio 1 4 Bl. Conim. 180. St. 105 (1872) ; Rex v. Alison, 8 Car. - lief,'. V. Lcddington, Car. & P. & P. 418 (1838); s.c. 34 Eng. C. L. 79 (1830) ; s.c. 38 Eng. C. L. 58 ; Rex 813. V. Russell, 1 Moo. C. C. 356 (1832); ^ Commonwealth cBowon. 13 Mass. 1 Ru.'is. Cr. (5th Eng. ed.) 170. 350 (1810) ; s.c. 2 Wheel. Cr. Cas. 226. * See Coumionwcalth v. Bowen, 13 SEC. 55.] SUICIDE. 57 It is thought that wliere one takes his life by the advice of another, tlie violence which the deceased inflicted on himself may be charged as done by the living accomplice, and the indictment need not differ from any ordinary one against a principal in the first degree for murder ; ^ " and it is too well settled to admit of a doubt that if one stands by persuading another to take his life, which is done, that the former is guilty of murder." ^ The Supreme Court of Missouri, in a late case,^ said that when on the trial of an indictment under a Missouri statute,"* making guilty of manslaughter any per- son who shall " deliberately assist " another in committing self-murder, an instruction that the defendant was guilty if he was " deliberately present, assisting " the deceased in the act, is not erroneous. Sec. 54. Same — Absence Avliea act conimittert — Effect on criminality. — There is some diversity of judicial opinion as to the legal liability of a party by whose persuasion and advice another in his absence kills himself ; ^ but the better opinion seems to be that if one procure another to commit suicide, but is absent at the time when the act is done, he is an accessory before the fact.*" Sec. 55. Abortion — Killing in producing. — Killing, in attempting to procure a miscarriage, is murder when the intention is to kill or grievously injure the woman,'' and manslaughter when the intention was only to produce a miscarriage, if the agency be one from which death or great 1 Bishop's Dir. & F. § 952. See Mass. 356 (1816); Vaux's Case, 4 Co. Commonwealth v. Bowen, 18 Mass. 44(1591); Rex i>. Leddington, 9 Car. 356 (1816); s.c. 2 Wheel. Cr. Cas. & P. 79 (1839) ; s.c. 38 Eng. C. L. 58; 226 ; Eex v. Dyson, cited in 8 Car. & Rex v. Russell, 1 Moo. C. C. 356 (1832). P. 424 (1823) ; s.c. Russ. & Ry. C. C. ^ Reg. v. Leddington, 9 Car. & P. 523; Reg. v. Alison, 8 Car. & P. 418 79 (1839) ; s.c. 38 Eng. C. L. 58; Rex (1838) ; s.c. 34 Eng. C. L. 813. v. Russell, 1 Moo. C. C. 356 (1832). 2 See Reg. v. Alison, 8 Car. & P. " State v. Moore, 25 Iowa, 128 418 (1838); s.c. 34 Eng. C. L. 813; (1868); Smith v. State, 33 Me. 48 Rex r. Hughes, 5 Car. & P. 126(1832); (1851); Commonwealth v. Jackson, s.c. 24 Eng. C. L. 486; Rex v. Dyson, 81 Mass. (15 Gray) 187 (1860) ; Com- Russ. & Ry. 523 (1823) ; 1 East P. C. monwealth v. Keeper of Prison, 2 228, 229. Ashm. (Pa.) 227 (1838) ; Reg. v. 3Statei;.Ludwig,70Mo.412(1879). Gaylor, 7 Cox C. C. 253 (1857); s.c. 4 Mo. Rev. St. § 129. Dears. & B. C C. 288. ^ See Commonwealth v. Bowen, 13 58 HOMICIDE. [chap. IV. injury would not be likely to result ; ^ and when the woman dies from negligence in the operation, the offence will be nianslauo-hter.^ But if the medicine is administered with "intent to kill or greatly injure, and the woman dies, it will be murder.^ The consent of the woman to the operation is no defence.* Sec. 56. Same — Causing pregnant woman to take poison. — In Rex v. Russell^ the defendant was tried on an indictment which charged a woman with murdering herself with arsenic, and the defendant with inciting her to com- mit the said murder. It appeared that the woman, who was about four months advanced in pregnancy, but not quick with cliild, died from taking arsenic which she had received from the defendant for the purpose of procuring a miscarriage, and that she knowingly took it in the absence of the defendant with intent to procure a miscarriage. It was objected on the trial that there was no evidence to prove that she was/^'^o de se ; that the statute of 9 Geo. 4, c. 31, § 13, did not apply to a woman administering poison to herself, and that assuming her to have taken arsenic knowingly and with intent to procure a miscarriage, she was not guilty of any offence, and, conse- quently, that if there was no principal there could be no ac- cessory, and the defendant could not be punished ; also that the statute of 7 Geo, 4, c. 64, § 9, did not apply to the case of a principal who was/e?o de se. But the court held that she was felo de se and that the defendant was an accessory before the fact. 1 Reg. V. Gaylor, 7 Cox C. C. 253 363 (1874) ; Commonwoalth v. Blair, (1857) ; Dears. & B. C. C. 288. See 123 Mass. 242 (1877) ; Commonwealth Smith V. State, 33 Me. 48 (1851). v. Brown, 121 Mass. 6!) (1870) ; People Under some statutes, if tlie woman v. Olmstead, 30 Mich. 431 (1874); is killed in the attempt to produce an State v. Glass, 5 Oreg. 73 (1873) ; abortion, and it api)ears that the do- Keg. v. Gaylor, 7 Cox C. C. 253 sign of the operator was not to take (1857) ; s.c. Dears. & B. C. C. 288. the life of tlie mother, the offence is 3 Smith v. State, 33 Me. 48 (1851); murder in the second degree. See Commonwealth v. Keeper of Prison, State V. Moore, 25 Iowa, 128 (1808) ; 2 Ashm. (Pa.) 227 (1838). Commonwealth v. Jackson, 81 Mass. •* See post, § 59. (15 Gray) 187 (1800) ; also Common- ^ 1 Moo. C. C. 350 (1832). See wealth V. Keeper of Prison, 2 Aslim. Beg. r. Leddington, Car. & P. 79 (Pa.) 227 (1838). (1830); s.c. 38 Eng. C. L. 5-8; per 2Yundt V. People, 05 III. 372 Alderson, B. (1872). See Willey v. State, 40 Ind. SEC. 57.] SUICIDE. 69 Sec. 57. Same — Supplying drugs to pregnant woman without causing lier to take them. — It is thought that, in the absence of a statute making it a felony for any woman to take poison to procure an abortion, one who supplies drugs to a pregnant woman, but does not cause her to take them, is not accessory to the abortion. Thus in Reg. v. Fretwell,i which was a trial for murder, it ap[)eared that the deceased had died from the effects of corrosive sublimate taken to procure abortion. She had endeavored to purchase corrosive sublimate herself, but the druggist having refused to furnish it to her, she had urged the prisoner to procure it, which he did with the full knowledge of the purpose to which it was to be applied ; but there was ground for believing that the prisoner, in procuring the poison, had acted under the influence of threats by the deceased of self-destruction if the means of procuring abortion were not supplied to her. She was a married woman, living separately from her husband, and pregnant by the prisoner. The jury expressly negatived the fact of the prisoner having administered the poison to, or caused it to be taken by, the deceased. They found that the prisoner procured the poison, and delivered it to the deceased, with knowledge of the purpose to which she in- tended to apply it, and that he was, therefore, accessory before the fact of her taking poison to procure abortion. Cockburn, C. J., thereupon, on the authority of Rex v. Rus- sell,2 directed the jury to return a verdict of guilty ; but it appearing doubtful to him how far the ruling in that case to the effect that if poison be t&ken by a woman to procure abortion, and death ensues, she is felo de se, could be upheld : and still more so, how far a man, accessory to the misde- meanor of a woman taking poison to procure abortion, can be held to be accessory to her self-murder, if, contrary to the intention of the parties, death should be the consequence, his lordship reserved these points. The higher court held that the conviction was wrong, and that there was a very marked distinction between the two cases. In the one the prisoner persuaded the woman to take the arsenic ; in the other the prisoner was unwilling that the Avoman should take the poison. The facts of the case were quite consistent with the 1 1 Leigh & C. 161 (1862). ^ i Moo. C. C. 356 (1832) ; supra, § 56. 60 HOMICIDE. [chap. IV. supposition that he hoped and expected that she Avould change her mind, and woukl not resort to it. The cases being distinguishable, the court felt that it was unnecessary to decide whether the woman wnsfelo de se.'^ Sec. 58. Attempts to commit suicide. — It is thought that under the common law, an attempt to commit suicide is punishable as a misdemeanor.^ But in Reg. v. Leddington,^ where the defendant was cliarged with inciting a man to commit suicide, Baron Alderson directed an acquittal, saying: " This is a case which the law cannot try." In this country, however, it is thought that an attempt to commit suicide is not a punishable offence.* The ground upon which this con- clusion is based is a well-established rule for the construc- tion of statutes, to the effect that the common law is held to be repealed by implication where the whole subject has been revised by legislation.^ Sec. 59. Consent of deceased. — No consent can be given which will deprive the consenter of any inalienable right.^ 1 By the 24 & 25 Vict., c. 100, § 58, any woman taking poison to procure a.bortion is guilty of felonj', whicli materially alters the character of such cases for the future, and the difficulty as to the trial of the accessory is got rid of by § 1 of the 24 & 25 Vict., c. 94. See Keg. v. Gaylor, 1 Dears. & B. 288 (1857). 2 Commonwealth v. Mink, 123 Mass. 422 (1877) ; Reg. v. Burgess,* 9 Co.x C. C. 247 (1802) ; s.c. Leigh & C. 258 ; Reg. v. Doody, G Cox C. C. 463 (1854). 8 9 Car. & P. 79 (18-39); s.c. 38 Eng. C. L. 5-8. See Reg. v. Burgess, 9 Cox C. C. 247 (18(52) ; s.c. Leigh & C. 258; Rex v. Aiisee, 2 Am. L. Rev. 794 (1808). * Commonwealth v. Mink, 123 Mass. 422 (1877) ; Commonwealth v. Dennis, 105 Mass. 102 (1870). ^ Commonwealth »•. Deimis, 105 Mass. 02 (1870). See Lakin v. Lakin, 84 Mass. (2 Allen) 45 (1801); Com- monwealth V. Marshall, 28 Mass. (11 Pick.) 350 (1831) ; Commonwealth V. Cooley, 27 Mass. (10 Pick.) 37 (1830). ^ A remarkable illustration of this principle in Pennsylvania is furnished by the case of Smith v. Commonwealth, 14 Serg. & R. (Pa.) 70 (1820), wherein it was held that an agreement not to bring a writ of error in a criminal case, especially one of high degree, does not estop the defendant from bringing such writ. The question arose after a conviction of burglary, where it was alleged that the defend- ant had agreed in writing not to bring a writ of error, but error was brought and a motion to quash the writ on the ground of the agreement was made. In refusing the motion the court said: " Wliat consideration can a man have received, adecjuate to im- ])risonment at hard labor for life? It is going but one step further to make an agreement to be hanged. I presume no one would be hardy enough to ask the court to enforce such an agree- ment, yet the ])rincipal is, in both cases, the same." SEC. 60.] SUICIDE. 61 Neither can any consent cancel a public law.^ Hence the consent of deceased to the killing is no bar to a prosecution for homicide,^ even where no malice exists.^ And where one takes the life of another at his request, he is guilty of murder.'* Sec. 60. Punisliinent for .suicide. — In England at one time the punishment for the crime of suicide was an igno- minious burial in the highway without Christian rights, with a stake driven through the body,^ and the vicarious punish- ment of his friends by the forfeiture of all his goods and chat- tels to the crown. But some years ago the law was altered, so that now the only consequence following an act of self- destruction being the denial of Christian burial, the felo de se being buried in the churchyard or other burying-ground, within twenty-four hours after the inquest, betvi^een the hours of nine and twelve at night.*' The ignominious burial in the highway is not only prohibited, but the interment of 1 Eeg. V. Sinclair, 13 Cox C. C. 28 (1880) ; Keg. v. Bennett, 4 Fost. & F. 1105 (1866). - Coniiiionwealth v. Parker, 50 Mass. (9 Mete.) 26:} (1845). See State V. Monlecai, 68 N. C. 207 (1873); State V. Johnson, Pliill. (N. C.) 186 (1867) ; Ducher v. State, 18 Ohio, 308 (1849) ; Johnston v. Commonwealth, 85 Pa. St. 54 (1877) ; RoUand v. Com- monwealth, 82 Pa. St. 306 (1876). 3 Commonwealth v. Parker, 50 Mass. (9 Mete.) 263 (1845). 4 Rex V. Hughes, 5 Car. & P. 126 (1832) ; s.c. 24 Eng. C. L. 486. See Keg. V. Alison, 8 Car. & P. 418 (1838) ; s.c. 34 Eng. C. L. 813; Reg. v. Fret- well, 9 Cox C. C. 152 (1862) ; s.c. Leigh & C. 161 ; Rex v. Russell, 1 Moo. C. C. 356 (1832). ^ There is no known legal authority for this custom, of burying suicides at cross roads with a stake driven through their body ; it is not mentioned by any of the early authors, nor does Black- stone refer to it. Stephen says that "probably, like the custom of gib- beting, which certainly existed long before the statute 25 Geo. 2, c, 37, it originated, without any legal warrant, in circumstances now forgotten. It was, however, abolished in 1823 by 4 Geo. 4, c. 52, which enacted that hence- forth it should not be lawful for any coroner to issue his warrant for the interment of a felo de se ' in any pub- lic highway.' He was to order the body to be privately buried in a church- yard, or other burial ground, 'without any stake being driven through the body,' between nine and twelve at night, and without any religious rites. This has been further altered by 45 & 46 Vict., c. 19, passed in 1882, which provides that the body of a suicide may be buried in any way authorized by 43 & 44 Vict., c. 41, that is, either silently or with such Christian and orderly religious service at the grave as the person having charge of the body thinks fit. The act is so worded, as to lead any ordinary reader to sup- pose that till it passed suicides were buried at a cross road with a stake through their bodies." 3 Hist. Cr. L. 105. 6 4 Geo. 4, c. 52 § 1. See 3 Steph. Hist. Cr. L. 105. 62 HOMICIDE. [chap. IV. such a person may be made in any manner authorized by the English Burial Laws Amendment Act of 1880.^ In Bracton's time a person who committed suicide in order to avoid a conviction for a crime forfeited his lands.^ Other suicides simply forfeited their goods. This distinction, how- ever, was forgotten before the time of Staundiforde.'^ The law in other respects remained unaltered until the year 1870, when all felonies were abolished.* In the United States there is no punishment for suicide. The constitutions of New Hampshire, Pennsylvania, and Ver- mont declare that estates of suicides are not forfeited ; those of Colorado, Delaware, Kentucky, Missouri, New Hampshire, Pennsylvania, Tennessee, Texas, and Vermont declare that such estates shall descend as in cases of natural death. In many, if not all, the states, statutes have been passed regard- ing suicides and assisting a would-be suicide ; ^ but the laws in this country against suicide may be termed dead-letter laws, as are also those punishing attempts at suicide.*^ The reason 1 45 & 40 Vic, c. 19, §§ 2, 3. '^ " Si quis reus fuerit alicujus criminis, ita quod captus fuerit pro morte hominis vel cum furto mani- festo, et cum utlagatus fuerit, vel in aliquo scelere et nialeficio deprehen- sus et metu criminis imminentis mor- tem ibi coiisciverit hsredem non habebit. Si quis autem tajdio vitae vel impatientia duloris alicujus seip- sum interfecerit, nunquani liabere poterit, et talis non amittit liasredita- tem sed tantum bona ejus mobilia confiscentur." Bracton II., 50fl. 8 Staundiforde, 19 D. See also Lambard, p. 247 ; o Co. Inst. 54 ; 1 HaleP. C.411. * 33 & 34 Vict., c. 23. " Suicide may be wicked, and is certainly inju- rious to society, but it is so in a much less degree thrfii murder. The injury to the person killed can neither be estimated nor taken into account. Tiie injury to survivors is generally small. It is a crime which prochices no alarm, and which cannot be re- peated. It would, therefore, be better to cease altogetlier to regard it as a crime, and to provide tiiat any one who attempted to kill himself, or who assisted any other person to do so, should be liable to secondary punish- ment." Fitz. St. 121. ^ See Ark. Rev. Sts., c. 44, div. 3, art. 2, § 4 ; Cal. Ten. Code, § 400 ; Dak. Comp. L. 1887, §§ 0435, 0430 ; Kan. Comp. L., c. 31, § 13, p. 326; Minn. Pen. Code, § 147 ; Gen. Sts., c. 94; Mo. Kev. Sts. § 1239; N. Y. Pen, Code, §§ 172-178; Oreg. Codes & Gen. L. §§ 17, 20, p. 892. •J Irving Browne says in the 40 Al- bany Law Journal, p. 22 : " We have never heard of a single instance of an enforcement of the provi.«ion of the Penal Code of this state (New York). Public opinion seems to be in tlie way. People generalh- seem to think — and we do not know that they are far wrong — that suicide argues either insanity or a mind so distracted by misfortune, disease, or unhappiness, as to make the offender an object rather of pity than of punishment. No one in a healthy state of mind and body ever voluntarily ' left the warm precincts of the cheerful day.' Some of the wisest and best men in SEC. 60.] SUICIDE. 63 seems to be because the sentiments of humanity are against them ; and it may be said to be almost universally true that those laws which contravene the opinions of mankind gener- ally and the sentiments of humanity are not enforceable. ancient and modern times have taken who set about it always mean to suc- their own lives; for example, Sir ceed. If it has any effect whatever, Samuel Koniilly and Hugh Miller, it is to make suicidal attempts effect- It is, in our opinion, a proof of tlie ual. It perhaps does not do any hurt, tenderness of human judgment that hut we cannot see that it does any this law cannot he enforced. It does good." not tend to diminish suicides, for those CHAPTER V. MURDER. Sec. 61. Definition. Sec. 62. Premeditated design. Sec. 63. In federal jurisdiction — What killing is murder. Sec. 64. In tlie king's peace. Sec. 65. Killing with specific malicious intent — Requisite of malice — Nature of tlie intent. Sec. 66. Same — Express malice. Sec. 67. Same — Wilful and negligent omission of duty. Sec. 68. Deliberation and cooling time. Sec. 69. Same — Sufficiency of time — Question for jury. Sec. 70. Same — Scope and object of inquiry. Sec. 71. Same — Adequate cooling time. Sec. 72, Same — What sufficient deliberation. Sec. 73. Inadequate cooling time. Sec. 74. Same — Passion after intent formed. Sec. 75. Same — Pretence of fighting. Sec. 76. Same — Feigned reconciliation. Sec. 77. Malice implied by act of killing. Sec. 78. Same — Interfering between combatants. Sec. 79. Same — Antecedent quarrel — Presumption therefrom as to malice. Sec. 80. Same — Anarchists' case — Manufacture of dynamite bombs. Sec. 81. Same — Rule in Colorado and Louisiana. Sec. 82. Same — From means used — Deadly weapon. Sec. 83. Same — What weapons are deadly. Sec. 84. Same — Would not justify use of deadly weapon. Sec. 85. Same — Means calculated to produce death under peculiar cir- cumstances. Sec. 86. Same — By administering poison. Sec. 87. Same — Sliown by surrounding circumstances. Sec. 88. Same — Quarrel — Retreat and pursuit. Sec. 89. Same — Prearranged quarrel — Mutual malice. Sec. 90. Same — Renewal of controversy. Sec. 91, Same — Assault by one of the slayers. Sec. 92. Same — Cruel or inliuman treatment. Sec. 93. Same — Revenge for assault upon defendant's son. Sec. 94. Same — Killing wife's paramour. Sec. 95. Same — Mutual combat. 64 SEC. 61.] MURDER. 65 Sec. 90. Same — Killing after proposal of combat. Sec. 97. Same — Malice presumed to continue — Provocation. Sec. 98. Killing officer in discharge of duty. Sec. 99. Killing one person in attempt to kill another. Seo. 100. Homicide while committing felony. Sec. 101. Homicide by gross misconduct or negligence. Sec. 102. Degrees of murder distinguished. Sec. 103. Same — First degree. Sec. lOi. Same — Illustrations. Sec. 105. Same — Second degree. Sec. 10(i. Same — Illustrations. Sec. 107. Same — Other degrees. Sec. 108. Principals and accessories — General rules as to principals. Sec. 109. Same — Principals in tlie first degree. Sec. 110. Same — Principals in the second degree. Sec. 111. Same — Conspirators. Sec. 112. Same — The Anarchists' case. Sec. 113, Same — Persons giving aid or advice. Sec. 114. Same — Accessories before the fact. Sec. 115. Same — Accessories after the fact. Sec. 61. Definition. — Murder is unlawful homicide with malice aforethought.^ At common law it is defined as the unlawful killing, by a person of sound mind and discretion, of any reasonable creature in being and under the king's peace, with malice aforethought, either express or implied by law.2 In the United States the offence is generally defined as the wilful killing of a human being in the peace of the state, or of the people, with malice aforethought, either ex- press or implied.^ 1 See Desty Am. Cr. L. §129; pie, 1 Col. 137 (1869); Bohannon y. Stephen's Cr. L. Art. 225. Commonwealth, 8 Bush (Ky.) 481 24 Bl. Comm. 195; 2 Chit. Cr. L. (1871) ; Commonwealth v. York, 40 724; 3 Co. Inst. 47; Harris' Cr. L. Mass. (9 Mete.) 93 (1845); Common- (3d ed.) 164. See Perry v. State, 43 loealth v. Webster, 50 Mass. (5 Cush.) Ala. 21 (1869) ; People v. Doyell, 48 295 (1850) ; State v. Zellers, 6 N. J. Cal. 85 (1874) ; People v. Martin, 47 Eq. (2 Halst.) 220 (1824) ; United Cal. 102 (1873) ; People v. Haun, 44 States v. Magill, 1 Wash. C. C. 463 Cal. 96 (1872); People v. Cronin, (1806) ; Desty Cr. L. § 129a; 1 Hale, 34 Cal. 200 (1867) ; People v. Pool, P. C. 424 ; 1 kawk. P. C, c. 31, § 3 ; 27 Cal. 572 (1865) ; People v. Belen- Post. 256 ; 2 Ld. Raym. 1487 ; 1 Russ. cia, 21 Cal. 544 (1863); People v. on Cr. (5th Eng. ed.) 641; Washb. Steventon, 9 Cal. 273 (1858) ; People Cr. L. 74. V. Moore, 8 Cal. 90 (1857) ; People v. » See People v. Aro, 6 Cal. 207 Gill, 6 Cal. 637 (1856) ; Smith v. Peo- (1856) ; Spies v. People, 122 111. 1 5 66 HOMICIDE. [chap. V. Sec. 62. Premeditated design.^ — The phrase "premedi- tated design," used in the statute of Mississippi in its definition of murder, is the same, in its legal effect, as are the words " malice aforethought," in the common law definition.^ Sec. 63. In federal jurisdiction — What killing is mur- der. — The Revised Statutes of the United States ^ provide that " every person who commits murder within any fort . . . under tlie exclusive jurisdiction of the United States . . . shall suffer death." But this statute does not define the offence of murder ; consequently the common law, as interpreted in our courts, governs, and murder is where a person of sound memory and discretion unlawfully and feloniously kills any human being in the peace of the sovereign, with malice pre- pense or aforethought, express or implied.'^ Sec. 64. " in the king's peace." — The term " in the king's peace," or " in the peace of the state," or " of the sovereign," or " of the people," refers exclusively to the state and condi- tion of the person killed, and a person not in a state of actual war against a state or sovereign, whether an alien enemy or a traitor in arms, is within its meaning;^ therefore, the killing, even in time of war, of an enemy's subject not in arms, pris- oners of war, persons with safe conduct, or deserters, is un- lawful, and, if with malice aforethought, is murder.^ Blackstone says : " The person killed must b3 a reasonable creature in being and under the king's peace at the time of (1887) ; s.c. 3 Am. St. Kep. 320 ; 9 Cr. L. Mag. 829 ; ti Am. Cr. Hep. 570; 12 N. E. Uep. 86.3 ; United States v. King, .•34 Fed. Hep. 302 (1888). Tiie distinction between murder and nianslaugliter is not iiltered hy the statute of Arlcai\sas, nor is the nature or definition of murder, both remaining; iis at common law. Bivens V. State, U Ark. 455 (1850). In Louisiana tlie definition of tlie offence of murder ns known under tlie common law of England, is the true definition of wilful murder, the punishnu-nt of which is provided for by the act of the legislature of 1855, § 1, relative to crimes and offences. State 1-. Mullen, 14 La. An. 577 (1859). 1 See pn<: Hill, 69 Mo. 451 (1879) ; (1857). State V. Melton, 8 Mo. 417. " State v. Dieckman, 11 Mo. App. 3 See State v. Sneed, 91 Mo; 552 538 (1883). (1887) ; s.c. 4 S. W. Rep. 411. » State v. Green, 37 Mo. 466 (1866). 112 HOMICIDE. [chap. V. murder in the first degree. ^ Thus where one hides behind a hedge, shoots at a man driving with his family in a wagon, with intent to kill him, and kills his child instead, he is guilty of murder in the first degree, under the statutes of Missouri.^ Where defendant wilfully, premeditately, and of malice aforethought kills a child, or is present aiding or abetting another so to shoot and kill deceased, it is murder at common law ; and where it is also committed by lying in wait, it is murder in the first degree.^ The intentional killing of an officer acting under proper warrant of arrest, is murder in the first degree. 2 In Nebraska the words "deliberate and premeditated malice " in the statute ^ mean that if any person shall purposely, and of deliberate and premeditated malice, kill another, he shall be deemed guilty of murder in the first degree. This re- stricts convictions to cases where some degree of deliberation is shown to have taken place before the killing.* In New Jersey premeditated design to kill, no matter of w^hat duration, will constitute murder in the first degree.'^ In New York, for the existence of the deliberation required to constitute the statutory crime of murder in the first degree, the time need not be long, and may be short. If it furnishes room and opportunity for reflection, and the facts show that such reflection existed, and the mind was busy with its design, and made the choice with full chance to choose otherwise, the condition of the statute is fulfilled.*^ Where one in the heat of passion strikes another, and supposing the blow to have been fatal, proceeds to conceal the body, but the person struck revives and is then deliber- ately strangled for the purpose of escape and concealment, such facts show a " deliberate and premeditated design," suffi- cient to warrant a conviction of murder in the first degree." 1 State V. Payton, 90 Mo. 220 Dutoli.) 4(53 (1857) ; affirmed in error, (188(5) ; s.c. 2 S. \V. Kc]). ;«)4. 26 N. J. L. (2 Duteli.) (iOl. '■^ State V. McNally, 87 Mo. 044 6 People v. Beckvvitli, 103 N. Y. .360 (1885). ' (1880) : s.c. 8 N. E. Hep. 002 ; 3 N. Y. 3 Neb. Gen. St. 720. St. Rep. 759; People v. Majone, 91 4 Milton V. State, Neb. 1.30, 143 N. Y. 211 (1883). (1877), " People c Deacons, 109 N. Y. 374 5 Donnelly v. State, 20 N. J. L. (2 (1888) ; s.c. 16 N. E. Kep. 676. SEC. 104.] MURDER. 113 In People v. Beckwitli,^ which was the trial of an indict- ment for murder, defendant's testimony was that he and deceased, as the result of a quarrel in defendant's house, became engaged in a furious struggle there, in the course of which he, being jammed back against the wall and choked by the deceased, seized a knife from a shelf near him and struck deceased with it, weakening him so that defendant got him down and choked him until, finding, as defendant expressed himself, " that he was about past recall," defendant " let him go," and " was afraid " he " had killed him " ; that defendant then went for and obtained liis axe with which he struck deceased on the head, killing him. It appeared that he then proceeded to mutilate and destroy the body. The defend- ant's own testimony, in connection with the other evidence, furnished grounds for a conviction of murder in the first degree ; for while the blow of the knife might have been given in the heat of the affray and without a purpose to kill, the procuring the axe and the subsequent conduct showed a design to kill, and some degree of premeditation and delibera- tion P- One may be convicted of murder in the first degree, although no motive for the crime is disclosed, nor any previous ill-feel- ing shown to have existed, the act having, apparently, been one of deliberate stabbing without provocation.^ On a trial for murder it appeared that the accused and the deceased had had no acquaintance before the occasion of the homicide ; that their meeting was casual ; that the deceased made some trifling remark, and the accused taking offence thereat stabbed him with a knife, causing immediate death. It was held that the killing, though probably unintentional, was "by an act imminently dangerous to others, and evincing a depraved mind regardless of human life," and would have warranted a verdict of murder in the first degree ; that if not murder in the first degree, it must have been manslaughter in the third or fourth degree, as it did not come within the statutory definition of murder in the second degree, the accused not 1 103 N. Y. 360 (1886) ; s.c. 8 N. E. 360 (1886) ; s.c. 8 N. E. Rep. 662 ; 3 Rep. 662 ; 3 N. Y. St. Rep. 759. N. Y. St. Rep. 759. 2 People V. Beckwith, 103 N. Y. -^ People v. Cornetti, 92 N. Y. 85 (1883). 8 114 HOMICIDE. [chap. V. having been engaged in the commission of any other felony at the time of the killing.^ Under the New York statute of 1876,^ making a homicide by one engaged in the commission of felony murder in the first degree, the fact that the accused while committing a burglary did not intend to kill the mistress of the house, whom he strangled, but only to avoid outcry and pursuit, is immaterial.^ In the case of Ruloff v. People,^ one of three burglars who had entered a store in the night was seized by two clerks, and in the struggle with them Avas struck and severely injured. The other two at first fled, but upon his cries for help, they returned and shot and killed the clerk who was at the time struggling with him. Although the deceased had the captive burglar at an advantage, there was no evi- dence that the latter was in any danger of bodily harm, or that the deceased was doing anything more than was necessary to defend himself, or possibly to detain the burglar in custody and prevent his escape. The crime was murder in the first degree. Where a person engaged in the commission of the crime of rape, by means of any force or violence employed by him for the purpose of accomplishing his object, causes the death of the female, although he did not intend to kill, he is guilty of murder in the first degree ; because it is a killing perpe- trated by a person engaged in the commission of a felony, within the meaning of the statute defining that degree of murder. '5 The Oregon statute defining murder as a "malicious killing" is not necessarily murder in the first degree. It nuist also be wilful, deliberate, and premeditated, or committed in the attempt to perpetrate some one of the felonies mentioned in the statute in order to render it murder in the first degree.*^ Where the defendant committed a robbery, and while carrying off the plunder was pursued by a constable, whom he shot 1 People V. Skeclian, 40 Barb. Ruloff's Case, 11 Abb. (N. Y.) Pr. (N. Y.) 217 (1807). N. S. 245 (1H71). 2 N. Y. L. 1870, c. ?y-l^. ^ Buel v. People, 78 N. Y. 492 3 Cox r. People, P.) Ilun (N. Y.) (1879). 430 (1879). " State v. Garrand, 5 Oreg. 216 * 45 N. Y. 21.3 (1871) ; s.c. sub nom. (1874). MURDER. 115 SEC. 104.] at, and in so doing killed a boy standing near, he was held guilty of murder in the first degree.^ In Pennsylvania it is held that in order to constitute murder in the lirst degree it is not only necessary that the act of killing should be wilful, premeditated, malicious, legally unjustifiable, and inexcusable, but the act of violence must be specifically directed against life.^ If, at the time defend- ant cUd the act, he thought of his purpose to kill the deceased, and had time to think that he would execute it, and formed fully in his mind the conscious design of killing, and had time to think of the weapon that he had prepared, and that lie would use it, and accordingly did so use it, it Avould be murder in the fkst degree.^ 1 State V. Brown, 7 Oreg. 186 (1879). ■■^ Commonwealth v. Williams, 2 Aslim. (Pa.) (59 (1839); Common- wealth V. Murray, 2 Ashm. (I'a.) 41 (1834). In an early case it is said that although murder in the first degree under the statute of Pennsylvania is confined to the wilful, deliberate, and premeditated killing of another, the intention — to be collected from words and actions — remains as much as ever the true criterion of crime. Res- publica V. Mulatto Bob, 4 U. S. (4 Dull.) 145 (1795) ; bk. 1 L. ed. 770. 3 Commonwealth v. Drum, 58 Pa. St. 9 (18G8). Where G., after a business alterca- tion with M., started up the road from M.'s house towards home, M. seized a poker and called out to G. that if he would come back,he(G.) should never go away alive. G. replied, " I will come back, God damn your wicked heart," and levelled a gun at M., who said, " Shoot, if you want to." G. dis- charged the gun and shot M. It was held that here were the ingredients of murder in the first degree, the intent being, within the Pennsylvania statute in that regard, a fully formed purpose to kill, with so much time for deliber- ation and premeditation as to convince the jury that this purpose is not the immediate result of rashness and im- petuous temper. Green v. Common- wealth, 83 Pa. St. 75 (1876). In Nevling v. Commonwealth, 98 Pa. St. 323 (1881), A and B having a street fight, in which A was knocked down and beaten, and the parties having, at A's suggestion, shaken hands, A went off, but made threats during the evening to different per- sons that he would shoot B the next day. A was then very drunk, and, after drinking further, he took a pint bottle of whiskey home with him, and went to bed without taking any supper but a cup of coffee. The next morn- ing lie ate no breakfast, but drank a pint of whiskey, and a half-pint of al- cohol ni which was dissolved about an ounce of gum camphor. Then he started for town with his gun in his hand, stating to a person whom he saw on the way that he had a load in it to shoot the man who hit him the night before. On arriving at town he drank more whiskey, and finally met B on the street, walking along and perfectly sober. B passed him with- out speaking, but A, after going a few steps, stopped, turned around, shot B in the back and fatally wounded him. On being arrested, A said he knew what he had done, and expected to be hung for it. The court held that a conviction of murder in the first de- gree was proper. 116 HOMICIDE. [chap. V. To constitute murder in the first degree, without the specific intent to take the life, a killing must be clearly shown by the prosecution to have occurred in the perform- ance of such acts as establish clearly an attempt to perpetrate arson, rape, robbery, or burglary.^ But to constitute mur- der in the first degree, where the killing happened in attempt to perpetrate a rape, the attempt must be actual, not con- structive.^ In Tennessee, to constitute murder in the first degree under a statute,^ which declares that "all murder which shall be perpetrated by means of poison, lying in wait, or any other kind of wilful, deliberate, malicious, and premeditated killing, or which shall be committed in the perpetration of, or attempt to perpetrate, rape, arson, burglary, or larceny, shall be deemed murder in the first degree." There must exist in the mind of the person who slays another a specific intention to take the life of the person slain, and that if he, with premeditated intention to slay one person, against his intention slay another, it will not be murder in the first degree.^ The killing must be done premeditately. It is not suflicient that it was malicious and wilful in the common- law sense.^ Tliere must be a design formed to kill wilfully, that is, of purpose, with the intent that the act by which the life of a party is taken should have that effect ; deliber- ately, tliat is, with cool purpose ; maliciously, that is, with malice aforethought ; and with premeditation, that is, the design must be formed before the act by which the death is produced is performed.^ The characteristic ingredient in the offence of murder of the first degree is the existence of a specific intention to take life ; and if that intention be delib- erately and coolly formed and acted upon, and death ensue, the intervention of provocation between the formation of tlie puri)ose to take life and the slaying will not reduce the offence to manslaughter.^ 1 Kelly ;-. CommonwcaUli, 1 Grant. ^ Anthony v. State, 1 Moigs (Tonn.) Cas. (Pa.) 484 (1858). 205 (1838); Dale r. State,' 10 Yerg. 2 Tenn. St. 1829, c. 2'.], § 3. (Tenn.) 551 (18o7). •■' Bratton v. State, 10 IIiini])]i. '' Clark r. State, 8 Humph. (Tenn.) (Tenn.) 103 (1849). 071 (1848). * Mitoliell i'. State, 5 Yerfr. (Tenn.) A eaught P carrying away prop- 340 (1833); s.c. 8 Yerg. (Tenn.) 514. erty which he had stolen from A. In SEC. 104.] MUEDER. 117 If a blow be struck by a party lying in wait, with a deadly weapon, without provocation, it is murder in the first degree ; the lying in wait is evidence of malice and premeditation, and all evidence as to the extent of the injury which assailant intended to inflict on the deceased is irrelevant.^ Under the Texas code, the express malice, which is the dis- tinctive ingredient of murder in the first degree, must be directed towards the particular, individual killed. If another than one against whom the express malice is conceived and entertained be the victim, the homicide becomes murder in the second degree.^ Evidence of brutal and cruel treat- ment towards the deceased prior to the homicide, will not suffice to establish such malice as will sustain a conviction for murder in the first degree.^ Ljdng in wait is evidence of express malice sufficient to sustain a conviction for murder in the first degree where there are attendant circumstances which bear out the presumed malice.* Killing by adminis- tering poison with a design to take life is murder in the first degree.^ A homicide committed in the perpetration of rob- bery is per se murder in the first degree.^ And a homicide catching him he shot hitn in the leg (1875), two men, utter strangers to and then took him into a drug-store each otlier, on their first meeting en- and sent for the police. Before the gaged in a rencounter, in which one police came B tried to escape, and A was killed. The difficulty began by tried to prevent it. A had a pistol in an effort on the part of deceased to liis hand all the while, and in the stop the way of the survivor as he struggle B grasped it, and failing to was passing, followed by the drawing possess himself of it drew his own of a pistol by deceased, over which a pistol and killed A. The court held struggle occurred for its possession, that A was justified in making the During the struggle the pistol was arrest, as well as in trj-ing to prevent fired and deceased fell, whereupon the B's escape, and that B was properly survivor, after stepping froni the body convicted of murder m tire first de- four or five steps, instantly returned gree. Wilson v. State, 11 Lea (Tenn.) and fired off the pistol at the head of 310 (1883). his late adversary, inflicting a mortal 1 Riley v. State, 9 Humph. (Tenn.) wound. Not more than twenty sec- 646 (1849). onds elapsed from the first meeting to 2 Miisick V. State, 21 Tex. App. the consummation of the homicide, 69 (1887). It was held that the circumstances " Slielton V. State, .34 Tex. 602 attending the homicide did not afford (1871). evidence of that express malice neces- * Johnson r. State, 30 Tex. 748 sary to constitute murder of the first (1868). Compare Osborne v. State, degree. 23 Tex. App. 431 (1887) ; s.c. 5 S. W. & Tooney v. State, 5 Tex. App. 103 Rep. 251. (1879). In Burham v. State, 43 Tex. 322 « Giles v. State, 25 Tex. App. 281 118 HOMICIDE. [chap. V. committed in the perpetration of arson, rape, or burglary, under the penal code of Texas, is murder in the first degree ; the malice in such cases being evidenced by the act of kill- ing for such purposes.! In West Virginia one who, while sober, deliberately resolves to kill another, and makes himself drunk for that purpose, and while temporarily insane, and unconscious of what he is doing, because of such drunkenness, kills the person, is guilty of murder in the first degree.^ Sec. 105. Same — Second degree. — As a general rule, all homicides committed with malice aforethought which lack premeditation and deliberation, and which are not committed by poison or lying in wait, or in the perpetration, or at- tempt to perpetrate rape, arson, burglary, or robbery, is mur- der in the second degree under the statute of the various states.^ This includes all cases of common-law murder where (1887) ; s.c. 4 S. W. Rep. 88(5 ; Gon- zales V. State, 19 Tex. App. 394 (1886) ; Stanley v. State, 14 Tex. App. 315 (1884) ; Duran v. State, 14 Tex. App. 195 (1884) ; Pharr v. State, 7 Tex. App. 472 (1880) ; Singleton v. State, 1 Tex. App. 501 (1877). 1 Singleton v. State, 1 Tex. App. 501 (1877). • State V. Robinson, 20 W. Va. 713 (1882) ; s.c. 43 Am. Rep. 709. 3 See Fields v. State, 52 Ala. 348 (1875) ; Duncan v. State, 49 Ark. 543 (1887) ; s.c. 6 S. W. Rep. 164 ; Green v. State, 45 Ark. 281 (1885) ; Harris v. State, 36 Ark. 127 (1880); People V. Grigsby, 62 Cal. 482 (1880) ; Peo- ple V. Doyell, 48 Cal. 85 (1874) ; State V. Johnson, 41 Conn. 584 (1874) ; s.c. Lawson's Insan. 609 ; State v. O'Neil, 1 Houst. Cr. Cas. (Del.) 468 (1875) ; State V. Boice, 1 Houst. Cr. Cas. (Del.) 355 (1871); State v. Till, 1 Houst. Cr. Cas. (Del.) 233 (1867) ; State v. Hamilton, 1 Houst. Cr. Cas. (Del.) 101 (1860); Boi/le v. State, 105 Ind. 469 (1885); s.c. 55 Am. Rep. 218; 7 Cr. L. Mag. 655 ; 5 N. E. Rep. 203 ; Brooks V. State, 90 Ind. 428 (1883) ; Miller v. State, 74 Ind. 1 (1881) ; Fahnestock v. State, 23 Ind. 231 (1864) ; State v. Marsh, 70 Iowa, 759 (1886) ; s.c. 30 N. W. Rep. 389; State V. Leeper, 70 Iowa, 748 (1886) ; s.c. 30 N. W. Rep. 501 ; State v. Town- send, 66 Iowa, 741 (1885) ; s.c. 7 Cr. L. Mag. 65; s.c. 24 N. W. Rep. 535; State V. Spangler, 40 Iowa, 365(1875) ; State V. Morphy, 33 Iowa, 270 (1871) ; State V. O'Hara, 92 Mo. 59 (1887) ; s.c. 4 S. W. Rep. 422; State v. Kotov- sky, 74 Mo. 247 (1881) ; State v. Lewis, 74 Mo. 222 (1881); s.c. 3 Cr. L. Mag. 78; State v. Ellis, 74 Mo. 207'(1881) ; State r. Erb, 74 Mo. li5U (1881); s.c. Lawson's Insan. 10; Staler. Robinson, 73 Mo. 306 (1880) ; State V. Stocckli, 71 Mo. 559 (1880); State r. Cooper, 71 Mo. 436 (1880) ; State v. Curtis, 70 Mo. 594 (1879); State v. Hill, 69 Mo. 451 (1879) ; State v. Wieners, 66 Mo. 13 (1877) ; State v. Lewis, 14 Mo. App. 191 (1885) ; Bo- hanan v. State, 15 Neb. 209 (1883) ; s.c. 6 Cr. L. Mag. 841 ; 18 N. W. Rep. 129; Daly r-. People, 32 Hun (N. Y.) 182 (1884) ; McCue v. Commonwealth, 78 Pa. St. 185 (1885) ; Common- wealth V. Drum, 58 Pa. St. 9 (1868) ; Kelly r. Commonwealth, 1 Grant Cas. (Pa.) 484 (1858) ; Petty v. State, 6 Baxt. (Teun.) 010 (1872); Gray v. SEC. 105.] MURDER. 119 the intention is not to take the life, but only to do great bodily harm, or to commit other injuries ; ^ and all other common-law murder, unless tlie statute expressly prescribes that homicide committed under certain circumstances shall be of a lesser degree. In murder in the second degree there may be a former design and purpose to kill ; but it is followed immediately by the act, and is not premeditated, the time and circum- stance being such as not to allow deliberate thought. Thus, where a person forms a design in the midst of a conflict to kill his opponent, and immediately executes such design, the killing is not premeditated, and is, therefore, no higher of- fence than murder in the second degree.^ No rule can, how- ever, be laid down for universal application as to elements or essentials of murder in the second degree ; but, as in the first degree, courts must be largely guided by the statutory provisions in their jurisdictions, and their own adjudications as applied to the peculiar circumstances of each separate case."^ State, 4 Baxt. (Tenn.) 332 (1874) ; Witt V. State, 6 Coldw. (Tenn.) 5 (1868) ; Fitzgerald v. State, 15 Lea (Tenn.) 99 (188-5) ; Hull v. State, 6 Lea (Tenn.) 249 (1880) ; AUsup v. State, 5 Lea (Tenn.) 362 (1880) ; McQueen v. State, 1 Lea (Tenn.) 285 (1878) ; Anthony v. State. 1 Meigs (Tenn.) 265 (1838) ; Coldwell v. State, 41 Tex. 87 (1874) ; Scott v. State, 23 Tex. App. 452 (1887) ; s.c. 5 S. W. Rep. 189 ; Van v. State, 21 Tex. App. 676 (1887) ; Hart v. State, 21 Tex. App. 163 (1887) ; Musick v. State, 21 Tex. App. 69 (1887) ; Lucas V. State, 19 Tex. App. 79 (1886) ; Alexander v. State, 17 Tex. App. 614 (1885) ; Cunningham v. State, 17 Tex. App. 89 (1885); Aikin v. State, 10 Tex. App. 610 (1881) ; Hoss v. State, 10 Tex. App. 455 (1881) ; s.c. 38 Am. Rep. 643; Hubby y. St^te, 8 Tex. App. 597 (1880) ; Douglass v. State, 8 Tex. App. 520 (1880) ; Harris v. State, 8 Tex. App. 90 (1880) ; Evans v. State, 6 Tex. App. 513 (1879) ; Wilson r. State, 6 Tex. App. 427 (1879) ; Hogan V. State, 36 Wis. 226 (1874). 1 Washington v. State, 53 Ala. 29 (1875) ; Harris v. State, 36 Ark. 127 (1880) ; State v. Rhodes, 1 Houst. Cr. Cas. (Del.) 476 (1877) ; State v. Boice, 1 Houst. Cr. Cas. (Del.) 355 (1871) ; State v. Till, 1 Houst. Cr. Cas. ( Del.) 233 (1867) ; State v. Green, 1 Houst. Cr. Chs. (Del.) 217 (1866); State v. Gardner, 1 Houst. Cr. Cas. (Del.) 146 (1804); State v. Hamilton, 1 Houst. Cr. Cas. (I^el.) 101 (1860) ; State v. Jones, 1 Houst. Cr. Cas. (Del.) 21 (1857) ; State v. Decklotts, 19 Iowa, 447 (1865) ; State r. Erb, 74 Mo. 199 (1881); s.c. Lawson's Insan. 10 ; State v. Robin- son, 73 Mo. 306 (1880) ; State v. Hill, 69 Mo. 451 (1879) ; AUsup v. State, 5 Lea (Tenn.) 362 (1880) ; Caldwell v. State, 41 Tex. 86 (1874) ; Hill V. State, 11 Tex. App. 456 (1882) ; Whiteford v. Commonwealth, 6 Rand. (Va.) 721 (1828). 2 Fahnestock v. State, 23 Ind. 231 (1864). 3 See Fields v. State, 52 Ala. 348 (1875) ; People v. Doyell, 48 Cal. 85 (1874) ; State v. O'Niel, 1 Houst. Cr. 120 HOMICIDE. [chap. V. Sec. 106. Same — Illustrations. — In Arkansas, where two men fought, and one said to the other, '■' Go away," and started off, the other followed, and struck and killed him with a stout stick, a verdict of murder in the second degree was held to have been properly rendered.^ In Duncan v. State ^ the testi- mony was to the effect that the accused and the deceased, who was his farm-hand, had some word^, the deceased being in the inclosure where he lived, and the accused on the other side of the fence, in the road. The deceased was given his dis- charge, when he began cursing the accused, and drew a pocket- knife and advanced toward him. As he mounted the fence, he threatened to '' cut the heart out " of the accused, and dared liim to shoot. The accused, who was carrying a double- barrelled shot-gun on his shoulder, retired about twelve feet, and warned the deceased not to come over the fence. The deceased jumped down, and was within ten feet of the accused, when the latter brought the gun from his shoulder, with the breach to his hip, and fired, the load passing into the breast of the deceased and ranging upwards. The accused, at the time, was quite feeble from sickness ; but his son, who was near him, w^as an able-bodied man. The court held this evi- dence sufficient to support a verdict of murder in the second degree.'^ In Harris v. State,^ where N., a colored man, went to the door of a room of C, a Chinaman (who lived on the same plantation with him), and after asking C, " Ain't you up yet ? " went into the room with a pistol in his hand, and Ca%. (Del.) 4G8 (1875) ; State v. State v. Lewis, 14 Mo. App. 191 Boice, 1 Houst. Cr. Cas. (Del.) -355 (1885) ; Gray i-. State, 4 Baxt. (Tenn.) (1871) ; State v. Leeper, 70 Iowa, 748 ,332 (1874) ; Caldwell i-. State, 41 (1886) ; s.c. 30 N. W. Rep. 501 ; State Tex. 87 (1874) ; Van v. State, 21 Tex. V. Townsen(l,G(i Iowa, 741 (1885); s.c. App. 67G (1887); Hart v. State, 21 7 Cr. L. Mag. 05 ; 24 N. W. Rep. 535 ; Tex. App. 163 (1887); Musick v. State v. Morphy, 33 Iowa, 270 (1871) ; State, 21 Tex. App. 69 (1887) ; Aiken State v. O'llata, 92 Mo. 59 (1887); ;•. State, 10 Tex. App. 610 (1881); s.c. 4 S. W. Rep. 422 ; State r. Boss v. Staff, 10 Tex. App. 455 Kotovsky, 74 Mo. 247 (1881); State (1881); s.c. 38 Am. Rep. 643 : Hubby r. Ellis, 74 Mo. 207 (1881); State v. r. State,8Tex. App. 597 (1880); Doug- Lewis, 74 Mo. 222 (1881) ; s.c. 3 Cr. lass v. State, 8 Tex. App. 520 (1880); L. Mag. 78; State v. Erb, 74 Mo. Hogan ;•. State, .36 Wis. 226 (1874). 199 (1881); s.c. Law. Insan. 10; i Green i-. State. 45 Ark. 281 (1885). State r. Robinson, 73 Mo. 30() (1880) ; 2 49 Ark. 543 (1887). Stater. Cooper. 71 Mo. 4.36 fl880) ; s n,inean v. State, 49 Ark. 543 State V. Edwanls. 70 Mo. 480 (1879); (1887); s.c. 6 S. W. Rep. 164. State c. Curtis, 70 Mo. 594 (1879) ; * 36 Ark. 127 (1880). SEC. 106.] MURDER. 121 said to C, "Get up, by God." To this C. replied, "Go away; don't bother iue. I no work to-day, it Sunday." N. said, "You don't mean to tell me to go away ?" and thereupon jerked C. out of the bed. C. fell on his feet, and picking up a large pole which was lying near the door, struck N. with it, the latter retreating from the blows into the yard and out at the gate, repeatedly warning C. to go away, and telling him that he didn't want to hurt him. After getting out through the gate N. fired at C. and killed him, the witness leaving it in doubt whether C. was near enough to him to hit him or not. Tliese facts were held only suflicient to warrant a con- viction for murder in the second degree. In California, under the division of murder into degrees, prescribed by the statute, a homicide which is unlawful, and accompanied Avith malice, but not deliberate and pre- meditated, is murder in the second degree.^ In Delaware, where one who, while attempting to rob another, killed him, but Avithout having had any intent to deprive him of his life, was held guilty of murder in the second degree.^ It is thought that if a police officer fires a pistol at a pei-son who is attempting to escape arrest for a misdemeanor, the officer having a warrant for his arrest at the time in his possession, and fatally wounds a third party, he is guilty of murder in the second degree.^ In State v. Hamilton,^ where the principal evidence in a murder trial showed that while the defendant and the only witness of the occurrence were drinking in one room, the defendant, after striking his Avife and sending her into the next room, passed into the latter room at several different times, and struck his wife on the head with his clenched fist, and she died seveial days after, the jury were properly instructed to convict of murder in the second degree, if they found that she died from the repeated blows. In State v. TilH A gave B some money to buy tobacco for him : B spent the money for himself, and, 1 People V. Doyell, 48 Cal. 85 * 1 Houst. Cr. Cas. (Del.) 101 (1874). (1860). 2 State V. Boiee, 1 Houst. Cr. Cas. * 1 Houst. Cr. Cas. (Del.) 233 (Del.) 355 (1871). (1867). 3 State V. D'Xiel, 1 Houst. Cr. Cas. (Del.) 468 (1875). 122 HOMICIDE. [chap. V. on his return, was struck by A with his fists and kicked. B went into the house in a rage, got a gun, and approached A with it cocked. A advanced upon him with a large hoe raised in his hands, when he was shot fatally by B. B was held to be guilty of murder in the second degree, if there had been time for his blood to cool after he was struck by A ; other- wise, of manslaughter. In Iowa, one who, without any necessity, either real or apparent, kills another, is guilty of murder in the second degree, under the statute, although he entered the combat without any intent to kill. Especially is this true if the slayer takes an undue advantage or uses a deadly weapon ; ^ for when one assaults another with a deadly weapon, likely to produce death, the law presumes malice, in the absence of proof, either direct or by circumstances, to the contrary.^ In State V. Leeper^ the defendant was convicted of murder in the second degree by causing miscarriage of a pregnant woman, upon evidence showing that the woman had lived in his house since she was twelve years old ; that improper inti- macy existed between them ; that he was a physician and treated and was constantly with her during her sickness, and that after he had told her she could not recover, she stated in his presence, but in the Swedish language, which he did not understand, tliat her sickness and approaching death were the result 6f a miscarriage caused by defendant, who had used instruments to produce it. The court held on appeal that, in the absence of a single fact tending to show that the mis- carriage was necessary to save the woman's life, the convic- tion would be sustained. In Missouri, to constitute murder in the second degree, there must have been premeditation, not necessarily of the killing, but of the act causing it.* It is said in the case of State V. Ollara,'^ that those cases of murder at common law in which there was no specific intent to kill, but in which the 1 State V. Morphy, 33 Iowa, 270 * ptatc !'. Lewis, 74 Mo. 222 (1881) ; (1871). s.c. 3 Cr. L. Mag. 78; State v. Erb, 2 State V. Townsend, GO Iowa, 741 74 Mo. 199 (1881) ; s.c. Law. Insan. (1885); s.c. 7 Cr. L. Mag. 05; 24 10. N. W. Rep. 535. ^ 92 Mo. 59 (1887) ; s.c. 4 S. W. 8 70 Iowa, 748 (1880) ; s.c. 30 N.W. Rep. 422. Rep. 501. SEC. 106.] MURDER. 123 law jiresumes the intent to kill, which are not declared man- slaughter, or specifically made murder in the first degree by statute, are cases of murder in the second degree ; and where there is evidence in the case tending to show that the killing was with malice aforethought, but without deliberation, an instruction for murder in the second degree should be given. If a homicide be committed wilfull3% and without justifica- tion, but not deliberately or premeditately, it is not nuirder in the second degree.^ Thus where one purposely fires into a crowd without intending to kill any particular person, does kill some one, the law presumes the killing to have been intentional, and that the crime was murder in the second degree.^ Killing a person in the heat of passion reduces the homi- cide to murder in the second degree. The passion referred to in the phrase "■ heat of passion " is not linuted to that heated state which is produced by some legal provocation.^ But a trivial provocation will not sufiice ; thus the rejection of a suitor by a young woman is not a just cause for such a heat of jjassion as will reduce homicide to murder in the second degree.* What will be deemed a just cause of provocation, and reduce a homicide to murder in the second degree, is a question for the court ; and whether the state of mind neces- sary was in fact produced by such provocation is a question for the jury.^ The state of mind produced by lawful provo- cation arising from a blow, which reduces the killing to man- slaughter, when it arises from degrading words, reduces the homicide to murder in the second degree.^ But provocation by words which will reduce the homicide from murder in the first degree to murder in the second, must come from the victim of the homicide ; rough language by bystanders is not sufficient.' In Tennessee, to constitute murder in the second degree, the proof must show that the killing was unlawful and malicious, 1 Stater. Cooper, 71 Mo. 436 (1880). 5 gtate v. Ellis, 74 Mo. 207 (1881). - State V. Edwards, 70 Mo. 480 6 state v. Kotovsky, 74 Mo. 247 (1879). (1881); State v. Ellis, 74 Mo. 207 3 State I'. Lewis, 74 Mo. 222 (1881) ; (1881). s.c. .3 Cr. L. Mag. 78. " State v. Lewis, 14 Mo. App. 191 ^ State V. Kotovskv, 74 Mo. 247 (1885). (1881). 124 HOMICIDE. [chap. V. although without the cool, deliberate purpose requisite to constitute murder in the first degree.^ In Texas, when the fact of unlawful killing is proved, and no evidence tends to show express malice on the one hand, or ail}' justification, excuse, or any mitigation on the other, the law implies malice, and the offience is murder in the sec- ond degree.^ Thus if it appears that the express malice of defendant was not directed toward the person killed by shooting him instead of another, the crime is murder in the second, not in the first degree.'^ And any rash and inconsid- erate killing from any sudden impulse, without any sedate and deliberate mind, is upon implied malice, and is murder in the second degree.* Thus one who fires a pistol into the window of a car in which he knows there are some passen- gers, is properly convicted of murder in the second degree.^ And when an officer, whose life is not endangered nor per- son threatened, kills a prisoner while attempting to escape, not from malice, but from a desire to prevent his escape, the offence is murder in the second degree.'' In the case of Ross v. State *" A and B, brothers, were convicted of murder in the second degree. It appeared that they were strangers in tlie town, and that A had with him a gun, which deceased, the marshal of the town, ordered him to deliver up, and before A had an opportunity to comply or refuse the marshal drew and fired a pistol, whereupon B drew and fired his j^istol, killing the marshal. There was no evidence tending to show that either A or B was acting in a disorderly manner. The appellate court lield tlie verdict was unsupported by the evidence. In Wisconsin, where the homicide and its circumstances are fully proved, evidence of good character can only go to the intent of the accused. The quality of the act as " imminently 1 Gray v. State, 4 Baxt. (Tenn.) * Van v. State, 21 Tex. App. 676 .332 (1874). (1887). 2 Hart V. State, 21 Tex. App. 163 ^ Aiken v. State, 10 Tex. App. 610 (1887) ; Hubby v. State, 8 Tex. App. (1881). 597 (1880) ; Douglass (.'. State, 8 Tex. '• Calihvell v. State, 41 Tex. 87 App. 520 (1880); Harris v. State, 8 (1874). Tex. App. 90 (1880). "10 Tex. App. 455 (1881); s.c. » Musick V. State, 21 Tex. App. 38 Am. Kep. 643. 69 (1887). SEC. 107.] MURDER. 125 dangerous and evincing a depraved mind, regardless of hu- man life," within the meaning of the statute,^ defining mur- der in the second degree, is to be found in the act itself, and the circumstances of its commission. ^ Sec. 107. Same — Other degrees. — In some of the states the crime of murder is divided into three or more degrees ; but, as such statutes are exceptional, and do not define the same offence, no general rule can be laid down for their interpretation. In "Wisconsin, an early statute ^ defines murder in the third degree to be the unlawful killing of a human being without any design to effect death, by a person engaged in the com- mission of a felony ; and a later one makes it a felony. To sustain a verdict of murder in the third degree under this statute, it should be shown that the accused intended to maim, disfigure, or kill.* To make a killing without a "design or intention " murder in the third degree, the felony committed, or attempted, from which the implied malice is derived, must have intimate relation and close connection with the killing ; and when the act constituting the felony is in itself dangerous to life, the killing must be naturally con- sequent to the felony.'^ In New Mexico it has been held that where there is evi- dence that there was ill-feeling existing at the time of a homicide between the prisoner and the deceased, and that, the parties being about thirty-five yards apart, deceased took his gun from his shoulder as if to offend the prisoner, but did not present or point it at him, when the latter stepped back a few steps and fired the fatal shot, such evidence is sufficient to support a conviction for murder in the fifth degree.^ Sec. 108. Principals and accessories — General rules as to principals. — All persons who participate in a felonious homicide, either as actors or actual perpetrators, or by their 1 Wis. Rev. St., c. 164, § 2. 5 Pliemling v. State, 46 Wis. 516 2 Hogan V. State, 36 Wis. 226 (1879); s.c. 3 Am. Cr. Rep. 211; 1 (1874). N. W. Rep. 278. 3 Wis. St. 1826, 0. 164, §§ 1, 2. s puran v. Territory, 1 New Mex. 4 State V. Hammond, 35 Wis. 315 218 (1857). (1874). 126 HOMICIDE. [chap. V. presence aiding, abetting, and advising, are principals in the crime. They are divided into two classes, to wit : principals in the first degree, and principals in the second degree. But this distinction shows no difference in the offence, except where there is a different punishment for each.^ It is well established that where two or more persons con- spire to do an unlawful act, all are liable for the acts of each, done in the prosecution of their common purpose ; ^ as wliere a homicide was committed by a person with wlioni the jnis- oner acted in concert ; ^ and all who act in concert in the prosecution of an unlawful act are accomplices or accessories.* But to render this true there must be a community of pur- pose,"'' mere mental approval or assent not being sufficient.^ The least degree of concert or collusion is sufficient to make the acts of one the acts of all." The acts of one bind each,^ and make them all equally guilty.^ Where there is a conspiracy to commit an offence, and both or all the conspirators are present, aiding and abetting 1 See State v. Davis, 29 Mo. 891 (1800) ; State v. Fley, 2 Brev. (S. C.) L. 3;]8 (1809); State v. Green, 4 Strobh. (S. C.) L. 128 (1849). 2 State V. Wilson, 30 Conn. 500 (1862) ; Ferguson r. State, o2 Ga. 0.38 (1861) ; lleid v. State, 20 Ga. 681 (1856); Tompkins v. State, 17 Ga. 356 (1855) ; Smith v. People, 25 111. 17 (1860) ; State i-. Myers, 19 Iowa, 517 (1865) ; Green v. State, 13 Mo. 382 (1850). 3 State V. Covington, 4 Ala. 003 (1843) ; Carrington v. People, 6 Park. Cr. Cas. 330 (186.5). 4 Davidson v. State, 33 Ala. 350 (1859) ; Frank v. State, 27 Ala. 37 (1855) ; Pinkard v. State, 30 Ga. 757 (1855) ; McKeen v. State, 7 Te.x. App. 631 (1880); Welsh v. State, 3 Tex. App. 413 (1878); Irvin r. State, 1 Tex. App. 301 (1877) ; Rasniek v. Com- monwealth, 2 Va. Cas. 356 (1823). See Kuss on Cr. (9th ed.) 49; 1 Whart. Cr. L. (8th ed.) § 213. 5 Harrington v. State, 36 Ala. 2.36, 242 (1860) ; Thompson v. State, 25 Ala. 41 (1854). 6 State V. Cox, 65 Mo. 29 (1877) ; Connaughty v. State, 1 Wis. 169 (1853). ' Brown t'. Smith, 83 111. 291 (1876); Phillips V. State, 6 Tex. App. 364 (1879) ; Hannon v. State, 5 Tex. App. 549 (1879) ; Wliart. Ev. § 1205. ^ United States v. Goldberg, 7 Biss. C. C. 175 (1876). 9 Jackson v. State, 54 Ala. 234 (1875) ; Smith v. State, 52 Ala. 407 (1875) ; Brown v. Smith, 83 111. 291 (1876) ; State v. Jac-kson, 29 La. An. 354 (1877) ; Commonwealth r. Ilar- ley, 48 Mass. (7 Mete.) 462 (1844); Collins r. Commonwealth, 3 Serg. & R. (Pa.) 220 (1817); United States V. Nunnemacher, 7 Biss. C. C. Ill (1876); United States r. Donau, 11 Blatchf. C. C. 168 (1873); Rex v. Parsons, 1 W. Bl. 392 (1763); Rex V. Shellard, 9 Car. & P. 277 (1840) ; s.c. 38 Eng. C. L. 170: Rex v. Mur- phy, 8 Car. & P. 297 (1837) ; s.c. 34 Eng. C. L. 744 ; Reg. v. Blake, 6 Q. B. 126 (1844); s.c. 51 Eng. C. L. 120; Reg. V. Slavin, 17 Up. Can. C. P. 205 (1866) ; Reg. r. Fellows, 19 Up. Can. Q. B. 48 (1859). SEC. 109.] MURDER. 127 the common design, Loth or all are liable for all the conse- quences ; ^ particularly is this the case in a conspiracy to rob.2 Sec. 109. Same — Principals in the first degree. — A principal in the first degree is one who is the actor or actual perpetrator of the fact.^ AViiere the killing is done directly, he must be the slayer, or one of them, causing death with his own hand, or by his own direct act, at the time and place ; but where the homicide is committed by means which do not require the presence of the slayer for its commission, his actual presence is not required. Thus, if, with malice, he does the fatal act through the medium of an insane person,^ or a person acting innocently and in total ignorance of tlie circumstances,^ he is a principal in the first degree, being tlie ' perpetrator of the homicide as much as if he had committed it with his own hand ; or, if he dispose of a poisonous sul> stance purposely, so that another takes it and dies therefrom, he is the principal in the first degree.*" Homicide in prosecut- ing a conspiracy to rob is murder in the first degree as to all engaged therein.'' It has been held to be murder in the first degree where a man kills a woman struggling with her while attempting to commit a rape.'' Such is universally held re- specting arson, burglary, rape, or robbery.^ All that is necessary to fix the crime is the killing to be done while per- petrating or attempting to perpetrate the felony.^*^ It is not iBrister v. Stnte, 2G Ala. 107 C. L. 213 ; Reg. r. Clifford, 2 Car. & (1855); Peoples. Woody, 45 Cal. 289 K. 202 (1845); s.c. 61 Eng. C. L. (1873); Commonwealth v. O'Brien, 201. 66 Mass. (12 Cush.) 84 (1853). e gee ante, § 4. - State V. Heyward, 2 Xott. & ' Moynihan v. State, 70 Ind. 126 McC. (N. C.) 312 (1820). (1880) ; s.c. 36 Am. Rep. 178. 3 1 Hale P. C. 235, 015. 8 Buel v. People, 78 N. Y. 492 ■* See Blackburn r. State, 23 Ohio (1879) ; s.c. 34 Am. Rep. 555. St. 105 (1872) ; Reg. r. Tyler, 8 Car. 9 People r. Xicdiol, 34 Cal. 211 & P. 616 (1838); Re.x v. Giles, 1 (1867); Singleton v. State, 1 Tex. Moo. C. C. 166 (1827); 1 Hale P. C. App. 591; Primus r. State, 2 Tex. 19. See ante, § 40. App. .369 (1877). '^ See Commonwealth v. Hill, 11 " Isham r. State, .38 Ala. 213 (1862) ; Mass. 136 (1814) ; Adams v. People, People v. Bcaloba, 17 Cal. 389 (1861) ; 1 N. Y. 173 (1848) ; Collins v. State, Commonwealth v. Pemberton, 118 3 Heisk. (Tenn.) 14 (1870) ; Reg. v. Mass. 36 (1875) ; Commonwealth v. Mazeau, 9 Car. & P. 676 (1840) ; s.c. York, 50 Mass. (9 Mete.) 93 (1845) ; 38 Eng. C. L. 393; Reg. v. Michael, State v. Brown, 7 Oreg. 186 (1879) ; 9 Car. & P. 356 (1840) ; s.c. 38 Eng. Roach v. State, 8 Tex. App. 478 128 HOMICIDE. [chap. V. necessary that the prisoner inflict the mortal wound,^ for it is immaterial who did the deed.^ Even his actual presence is not necessary, for it lias been held that when a person is proved to have been associated with others in the commission of a crime, although he is absent when the deed was com- mitted, he is deemed constructively present.^ But it was recently held by the supreme court of Cali- fornia, in the case of People v. Keefer,* that where one simply encourages another to commit a misdemeanor, upon the body of a third person, which did not and could not cause death, or any serious injury, is not liable for the murder of such third person by his co-conspirator, Avhen such killing was neither aided, advised, nor encouraged by him, nor involved in nor incidental to any act by him aided, advised, or encour- aged. Sec. 110. Same — Principals in the second degree. — A principal in the second degree is one who is present aiding and abetting at the commission of the homicide. He must be a participant in the act, and he must be shown to be either actu- ally or constructively present.^ It is not necessary that he should bear any particular malice against the person killed;^ but he must do something affirmatively to show that he is a conspirator in the crime, or is in some way interested in bringing about the success of the attempt to kill. The mere sanction or presence of a person, whether it be passive or constrained, cannot render him a principal. '' By some statu- tory provisions all distinctions between princi})als and acces- (1880); Pharr v. State, 7 Tex. App. * 65 Cal. 232 (1884); s.c. 3 Pac. 472 (1880) ; Tooney v. State, 5 Tex. Rep. 818. App. 103 (1870). 5 People v. Ah Pincr, 27 Cal. 489 1 State V. Jarrott, 1 Ired. (N. C.) (1805) ; Plummer r. Conimonvvealth, L. 76 (1840); United States r. Ross, 1 Bush (Ky.) 70 (1866); Butler v. Gall. C. C. 024 (1813). Commonwealth, 2 Duv. (Ky.) 435 2 Brister v. State, 26 Ala. 107 (1806) ; Connaughty i-. State, 1 Wis. (1855); People v. Woody, 45 Cal. 109 (18.53) ; Post. Cr. L. 350; 1 Hale, 289 (1873) ; State v. Antliony, 1 McC. P. C. 439. (S. C.) L. 285 (1821). " M?rennan v. People, 15 111. 511 3 State f. Hey ward, 2 Nott. & MeC. (1854) ; State v. Cockman, 1 Winst. (S. C.) 312 (1820); s.c. 10 Am. Dec. (N. C.) L. 95 (1804); State v. Fley, 004. See Commonwealth v. Macloon, 2 Brev. (S. C.) L. 338 (1809) ; United 101 Mass. 7 (18(i9) ; People v. Genet, States v. Ross, 1 Gall. C. C. 624 19 Hun (N. y.) 91, 90 (1879) ; Desty (1813). Am. Cr. L. §§ llh, 38a, and 129n. ' Butler v. Commonwealth, 2 Duv. SEC. 111.] MURDER. 129 sories before the fact are abolished, thus making any person criminally concerned in a homicide a principal whether he be present or absent at the time of its commission .^ Sec. 111. Same — Conspirators. — Where two or more persons conspire together, either to commit a homicide, or to do any other unlawful act, and, in the execution of their design a homicide is committed, it is murder in all who enter into the conspiracy, or take part in the execution of the design.^ Thus if several persons are associated together in the commission of a robbery, and one of the associates does not intend to take life, and prohibits the others from taking life ; yet if one of his associates takes life while they are engaged in the robbery, and in the furtherance of the common purpose to rob, he is as much guilty of murder in the first degree as though his own hand had given the fatal blow.^ And one who, with others, is holding forcible possession with fire-arms of land claimed by other parties, may be convicted of murder although not he, but one of his confederates, did the killing.* And where A in carrying out a conspiracy with B to take C from his house and flog him, kills C, B is equally guilty of murder.^ In Kirby v. State,^ three prisoners. A, B, and C, conspired to escape from jail. It was arranged that C should secure the jailer. It did not appear that there was any design to kill or injure him, but C killed him with a piece of iron which A had concealed the morning before. At the time C killed the jailer A and B were locked up. The court held that A and (Ky.) 435 (18fi6); Connaughty i: Tex. App. 13 (1887); s.c. 5 S. W State, 1 AVis. 169 (1853). Rep. 165; Rex v. Passey, 7 Car. & P, 1 See Spies v. People (Anarchists' 282 (1836) ; s.c. 32 Eng. C. L. 614 Case), 122 III. 1 (1887); s.c. 3 Am. Rex r.Lockett, 7 Car. & P.300 (1836) St. Rep. 320; 9 Cr. L. Mag. 829; 6 Rex v. Standley, Russ. & Ry. C. C Am. Cr. Rep. 570; 12 N. E. Rep. 865. 305 (1816) ; s.c. 32 Eng. C. L. 684. 2 Williams v. State, 81 Ala. 1 ^ People v. Vasquez, 49 Cal. 560 (1886); s.c. 1 So. Rep. 179; People (1875); Stephens r. State, 42 Ohio St. V. Brown, 59 Cal. .345 (1881) ; People 150 (1884) ; s.c. 1 Am. L. J. 96. V. Vasquez, 49 Cal. 500 (1875) ; State * Weston v. Commonwealth, 111 i;. McCahill, 72 Iowa, 111 (1887); s.c. Pa. St. 251 (1885); s.c. 6 Am. Cr. 33 N. W. Rep. 559; Peden v. State, Rep. 436; 2 Atl. Rep. 191. 61 Miss. 267 (1883) ; Stephens v. ^ Peden v. State, 61 Miss. 267 State, 42 Ohio St. 150 (1884) ; Weston (1883). V. Commonwealth, 111 Pa. St. 251 ^ 23 Tex. App. 13 (1887); s.c. 5 (1885) ; s.c. 6 Am. Cr. Rep. 4.30; 2 S. W. Rep. 165. Atl. Rep. 191 ; Kirby v. State, 23 130 HOMICIDE. [chap. V. B could be found guilty of murder. In Pliillips v. State ^ it appeared that the defendant went to the deceased's house the day of the killing, and said that he and three others, whom he named, would kill the deceased that night. The four met together and prepared ammunition, and the defendant said, " The one that crawfishes out of this business, we will all turn on liim." One of the four called after they had passed, some one from their number shot deceased. The fifth person testified that defendant was with him, and that they did not stop and did not hear or witness the shooting, and that he did not hear of it until the next morning. This constituted a conspiracy to kill deceased, in which the defendant was the chief actor, though he might not have been present at the killing ; and he was principal, and guilty as such, within the meaning of the Texas statute ^ providing that all persons who act together to commit a crime, in furtherance of the common design, shall be guilty as principals. Where death takes place as the ordinary and probable result of acts committed in the due course of the execution of the conspiracy, the act of one is the act of all, and all are guilty, whether present or absent ; for he who enters into a combina- tion or conspiracy to do such an unlawful act as Avill probably result in the taking of human life, must be presumed to have understood the consequences which might reasonably be ex- pected to flow from carrying it into effect, and, also, to have assented to the doing of whatever would reasonably or proba- bly be necessary to accomplish the objects of the conspiracy, even to the taking of life.'^ It is not essential to the guilt of one of the conspirators that, in the preparation of the instru- mentalities for the carrying out of the common design, he 1 2fi Tex. App. 228 (1888) ; s.c. new men, an instruction to tlie effect S. W. Hep. 557. that if the defendant was engaged in 2 Tex. Pen. Code, arts. 74, 70. a conspiracy to forcibly compel the " See Spies r. People (Anarchists' new men to leave, and in the carrying Case) 122 111. 1 (1887) ; s.c. 3 Am. out of such conspiracy the act of St. Rep. 320; Am. Cr. Rep. 570; 9 homicide was committed, such homi- Cr. L. Mag. 829; 12 N. E. Rej). 805; cide was binding upon him as much Brennan v. People, 15 111. 511 (18.")4). as if done by himself, is not error. On a trial for murder coniiiiitted State r. McCahill, 72 Iowa, 111 (1887) ; by a mob of miners on strike, in c.ir- s.c. 9 Cr. L. Mag. 37; 33 N. W. Rep. rying out a conspiracy to drive out 559. SEC. 112.] MURDER. 131 did not know the name of the particuLar individual \yho was to use them. Sec. 112. Same — The Anarcliists' Case. — Where a num- ber of persons conspired together to destroy the police force of a city in case of a certain event, as, for instance, a collision between said police force and workingmen, by throwing a bomb among the police, it was immaterial that the bomb- maker did not know what particular person was to throw it, if he made and delivered it in the knowledge that it was to be exploded by one of a number of persons having a common purpose, and in furtherance of that purpose; and therefore it was not necessary for the thrower of the bomb to be per- sonally identified, but it was sufficient to implicate the bomb- maker that it appeared that the bomb-thrower belonged to the conspiracy, and threw the bomb to carry out its arrange- ment and further its design. The fact that the principal in the first degree was personally unknown to a person charged with aiding, abetting, advising, and encouraging a homicide is not necessarily any obstacle to a conviction. ^ And it is alike imimportant that the person charged as a conspirator does not know which one of the class of persons at whom the conspiracy is aimed is to be its victim. So it was immaterial, in fixiup- the g^uilt of the bomb-maker, that he did not know what particular policeman might be killed or injured. The design of the conspiracy virtually designated the body or class of men who were to be attacked, and where one of such class was killed, the guilt of the bomb-maker was the same as though a particular person had been pointed out to him as the intended victim.^ Where, in a conspiracy to accomplish an unlawful purpose, the means are not specifically agreed upon or understood, each conspirator becomes responsible for the means used by any co-conspirator in the accomplishment of the purpose in which they are all at tlie time engaged.^ But where the Avays and means for the accomplishment of the unlawful design are mutually agreed upon beforehand, in order to 1 Spies V. People(Anarchists' Case), '^ Spies v. People, 1'22 III. 1 (1887) ; 122 111. 1 (1887); s.c. .3 Am. St. Rep. s.c. 9 Cr. L. Mag. 829; 3 Am. St. 320; G Am. Cr. Rep. 570; 9 Cr. L. Rep. 320; 5 Am. Cr. Rep. 570; 12 Mag. 829 ; 12 N. E. Rep. 865. N. E. Rep. 865. 132 HOMICIDE. [chap. V. place responsibility for the homicide upon co-conspirators, the conspiracy must be carried out according to the original desio-n ; but this does not mean that every detail of the plan must be executed as arranged, for that is not always a pos- sibility ; but that the general plan of the conspiracy shall be carried out in a manner corresponding with that arranged so as to successfully accomplish the purpose by means agreed upon. Thus where the arrangement was to kill policemen at a station-house, but the agents of the conspiracy killed the policemen a short distance away from the station-house, where they had marched to disperse a meeting convened by the conspirators and addressed by some of them, there was no such departure from the original plan as to relieve any of the conspirators, whether present or absent, from responsibil- ity for the homicide. Nor did it matter that some of the conspirators participating in the attack made use of pistols instead of bombs ; but although the homicide was committed by means of the bomb, those conspirators firing pistols for the same purpose were equally guilty with the one who threw the bomb.^ The purpose of the conspiracy must be unlawful. But this does not imply that the means agreed upon to carry it out must themselves always be forcible and unlawful ; it is enough if it is understood that unlawful and forcible means are to be used only in case of the failure of means lawful and peaceable. Thus the fact that persons who formed a conspir- acy to bring about a change of government may not have intended to resort to force, unless in their judgment they should deem it necessary to do so, did not make their con- spiracy any the less unlawful. Its object was criminal, and when the homicide was committed in furtherance of the com- mon design, and by means previously understood and mutu- ally agreed upon, all the conspirators were equally guilty, no matter what their intention may have been at the time of the formation of the conspiracy.^ Nor is it always necessary that the ultimate object souglit to be attained should be the same with all the conspirators, if the immediate end in view be the same, and all combine and work together to accomplish 1 Spies r. People, 122 111. 1 (1887); Rep. 320; Am. St. Rep. 570; 12 s.c. 9 Cr. L. M.ig. 829; 3 Am. St. N. E. Rep. 865. SEC. 113.] MURDER. 133 it, and the homicide be committed as a result of such com- bination. Thus if men combine together as conspirators to accomplish an unlawful purpose, as, for instance, the over- throw of society and government and law, called by them a " social revolution," and seek, as a means to an end, by print and speech, to excite to tumult and riot and murder, another class of persons having a different purpose in view, as in the case of workingmen who have entered upon a "strike" with the view of bringing about a reduction of the hours of day labor, then, notwithstanding the difference in the ultimate objects desired to be attained by the respective classes of persons, the conspirators who advised and instigated the others to violence will be held responsible for any murder that may result from their aid, advice, and encouragement.^ Sec. 113. Same — Persons givingr aid or advice. — A person who is present at a homicide, abetting or advising its commission, is guilty as a principal, even though he may not have previously conspired to bring it about.^ If a murdered man dies from the joint effect of blows given by A and B, and B's blows are given last, it is murder by B, Avhether they acted in concert or not.'^ 1 Spies r. People, 122 111. 1 (1887) ; B.C. 9 Cr. L. Mag. 820; 3 Am. St. Rep. 320; (3 Am. St. Rep. 570; 12 N. E. Rep. 865. 2 Jordan r. State, 79 Ala. 9 (1885) ; Frank v. State, 27 Ala. 37 (1855); Dumas v. State, 62 Ga. 58 (1878); Johns V. Commonwealth (Ky) 3 S. W. Rep. 369 (1887); Thompson V. Commonwealth, 1 Met. (Ky-) 1-^ (1858); Commonwealth r. Chapman, 65 Mass. (11 Cush.) 422 (1853) ; Com- monwea/th v. Boicen, 13 Mass. 359 (1816) ; s.c. 7 Am, Dee. 154; 2 Wheel. Cr. Cas. 220; State v. Walker, 98 Mo. 95, 135 (1888); s.c. 9 S. W. Rep. 647; Wynn r. State, 63 Miss. 260 (1885) ; Shoemaker v. State, 12 Ohio, 43 (1843) ; State v. Moran, 15 Oreg. 262 (1887); s.c. 14 Pac. Rep. 419; Tharpe v. State, 13 Lea (Tenn.) 138 (1884); Fisher v. State, 10 Lea (Tenn.) 151 (1882); Beets v. State, 1 Meigs (Tenn.) 106 (1838); Phelps r. State, 15 Tex. App. 45 (1884) ; Trim v. Commonwealth, 18 Gratt. (Va.) 983 (1868) ; Coiinaughty r. State, 1 Wis. 159 (1853). Where W. lends A. a jiistol, and a short time afterwards A. kills .M., and W. is present at the killing, and just before the firing exclaims to A., " Shoot him," and just after the firing, " Shoot him again," then W. is an aider and abettor of the crime, and under the Mississippi Code, 1880, § 2698, is guilty as principal, even though W. supposed that A. was shooting at J. and not at M. Wynn v. State, ()3 Miss. 260 (1885). 3 Fisher v. State, 10 Lea (Tenn.) 151 (1882). In Johns v. Commonwealth (Ky.), 3 S. W. Rep. 369 (1887), the defend- ant, after having been overheard to say to A. in a low tone, " We have a fight fi.xcd up, and we w^ill carry it through," fired his pistol at deceased, 134 HOMICIDE. [chap. V. But the mere presence of a party at the commission of the homicide, whether passive or constrained, is not sufficient to constitute him a principal ; there must be something sliown in his conduct which unmistakably evinces a design to en- courage, incite, approve of, or in some other manner afford aid or consent to the act.^ Neither is a bystander responsible for the commission of a homicide, even though lie takes part in acts connected with it, if the killing does not result there- from, and there is no preconcert between him and the slayer.^ Thus where two persons are jointly indicted and tried for murder, and the evidence shows that one fired the fatal shot, while the other cut the deceased with a knife during the difficulty, the latter is not guilty of murder, unless the cut with the knife contributed to the death of the deceased, or unless preconcert or community of purpose between the two defendants is shown, rendering each liable for the acts of the other.3 And it has been said that if A and B by preconcert make an attack on C, in which D, not being privy to their common designs, participates, this will not be murder in D if death ensues from wounds inflicted by either A or B.4 A person may aid or abet or encourage a homicide by standing upon watch, or keeping guard,'^ or by aiding or ad- vising another person to administer a poisonous substance, as well as by being- actually present at the commission of the act. It is said in the case of State v. Moran^ that under a stat- ute '^ providing that all persons concerned in the commission of a crime, whether they directly commit the act constituting wlio disarnied him, ami requested him (1855) ; Tliarpc v. State, 13 Lea to cease tlie difliculty. Shortly after- (Tena.) KW (1884). ward A. shot deceased, and defendant ^ Jordan v. State, 7f> Ala. (1885). also tried to slioot liiiu with a ^^vlw he * Frank i?. State, 27 Ala. ;>7 (1850). had borrowed after his jiistol was ^ State v. Walker, 08 Mo. !)5, 135 taken from him. The court held that (1888); s.c. 9 S. W. Hep. (540; dis- a conviction of the defendant as an sentin<;f opinion, US. W. Hep. 1133; aider and abettor of the murder Slioeinaker i'. Slate, 12 Ohio, 43 should be sustained. (184:5). 1 Connauglity v. State, 1 Wis. 159 « 15 Oreg. 202 (1887); s.c. 14 Tac (1853). Rep. 419. 2 See Jordan v. State, 79 Ala. 9 7 Oreg. Crim. Code, § 748. (1885); Frank v. State, 27 Ala. 37 SEC. 114.] MURDER. " 135 the crime, or aid or abet in its commission, though not pres- ent, are principals, evidence is admissible on a trial for mur- der in the usual form, that poison was administered to the deceased by another person, and that the defendant was im- plicated in the deed.^ Sec. 114. Same — Accessories before the fact. — To com- mit murder, and to be accessory thereto, are different oifences. An accessory before the fact is one who, although absent at the time of the commission of a homicide, j-et procures, coun- sels, commands, abets, or advises its commission by another.^ A person cannot be an accessory before the fact to a homicide unless he is absent at the time of its commission ; for if he is present, he is guilt}- as principal, if guilty at all.^ To con- stitute a person an accessory, there must be some affirmative act or encouragement by him looking towards its commission ; the mere knowledge that a felony is about to be committed, his presence, together with his knowledge of it, will not, without more, make him an accessory to it or to a homicide resulting from it ; neither will the fact that he is present, or gives his bare permission or tacit acquiescence in the contem- plated felonious act.^ An accessory before the fact is responsible for all the con- sequences of an unlawful act, which he aids, abets, advises, or encourages ; the only difference, if any, between his guilt and that of the actual slayer being one of degree, and going only to the punishment, which, however, is usually the same in the case of both. Thus if a person command or encourage an assault, and the party assaulted dies from the effects thereof, 1 On the trial of a prisoner for - State v. Cassady, 12 Kan. 550 murder who confessed that he was of (1874) ; State v. Phillips, 24 Mo. 475 the party wiio robbed the store of the (1857) ; Norton v. People, 8 Cow. deceased on tlie niglit of the murder, (N. Y.) 137 (1828) ; Jones v. State, but declares tliat lie was about two 13 Tex. 1G8 (1854) ; United States v. hundred yards off wlien the gun was Ramsay, 1 Hempst. C. C. 481 (1887) ; fired, and did not go to the store, but Re.x v. Cooper, 5 Car. & P. 535 (1833) ; had the plunder brought to him by s.c. 24 Eng. C. L. 694 ; Rex t;. Gordon, tlie others, the jury found that he was 1 Leach C. C. 515 (1789) ; 1 East P. constructively present, aiding and C. 352 ; 1 Hale P. C. 015. abetting the murder, and the court ^ Rpx v. Gordon, 1 Leach C. C. 515 refused to set aside the verdict. Trim (1789); 1 East P. C. -352; 1 Hale P. r. Commonwealth, 18 Gratt. (Va.) C. G15. 983(1868). 4 1 Hale P. C. 616. 136 * HOMICIDE. [chap. V. the adviser is guilty of the murder as accessory before the fact.i The means used need not be those prescribed or advised, if of the same nature as to the result of their use, and the accomplishment of the object sought. So where a person advises the killing of another by poisoning, but the homicide is committed by shooting, the adviser is still guilty as acces- sory .^ The communication between the accessory and the slayer must be direct,^ unless the act be directly towards the person slain, as, for instance, an invitation by the accessory to a person to go to a certain place, in order that he may there be killed.* The aid or encouragement given must continue up to the time of the commission of the murder, or of the acts from which it results. If the adviser countermands his order, or withdraws his advice or encouragement before the slayer has committed any overt act, he is not guilty.^ An accessory may usually be indicted, tried, and convicted, either before or after the trial of the person charged as ])nn- cipal ; and the dismissal of the charge against the latter does not discharge the accessory.^ From the nature of the offence, accessories before the fact are generall}^ charged as being advisers or abettors of the crime of murder in the first degree ; but it has been held that a person may be convicted, as acces- sory before the fact, of murder in the second degree.''^ Sec. 115. Same — Accessories after the fact. — An acces- sory after the fact is one who receives, shelters, comforts, assists, relieves, or counsels a person whom he knows to be guilty of a homicide, either as principal or accessory before the fact.^ The offence cannot be committed by a mere pas- sively allowing the felon to escape ; but it is complete when- ever any affirmative acts are done which tend to hinder or delay liis apprehension or trial.-^ Thus where two persons 1 See 1 Hale P. C. 617. « State v. I'liiUips, 24 Mo. 475 2Fost. 369. (1857). 3 Reff. V. Blackburn, 6 Cox C C. ^ Jones v. State, 13 Tex. 168 (1854). 333 (1853). R See White v. People, 81 III. 3.33 ■* Rej,'. r. Manning, 2 Car. & K. 887. (1876) ; Ilarrel v. State, 30 Miss. 702 903 (1849) ; s.c. 61 Eng. C. L. 886, (1861) ; 2 Mawks. e. 28, § 1. 902. 9 Dalt. 350; 1 Hale P. C. 619. 6 1 Hale P. C. 618. SEC. 115.] MURDER. 137 are alone at the time of the killing of another, and but one does the killing, and the other does not aid, abet, or assist in the killing, but afterwards they both, with guilty knowledge, conceal the fact of the crime, the one not participating in the crime is only guilty as an accessory after the fact, and is not guilty of murder.i At common law the relationship of husband and wife excuses the wife for harboring, sheltering, or concealing a felon, she being subject to his control ; ^ and, under some statutes, the excuse of relationship is made available by a parent, brother, or sister.^ 1 White r. People, 81 111. 333 903 (1849) ; s.c. 61 Eng. C. L. 886, (1876). 902; 1 Hale P. C. 621. 2 Keg. V. Manniug, 2 Car. & K. 887, ^ ggg Mass. Gen. Stat., c. 1 68,§ 6 ; VVhart. Horn. (2d ed.) § 35i. CHAPTER VI. MANSLAUGHTER. Sec. 116. Definition. Sec. 117. Distinction between manslaughter and murder — Moral character of manslaugliter. Sec. 118. Kinds of manshiughter. Sec. 119. Voluntary manslaughter defined. Sec. 120. Reducing homicide to manslaughter. Sec. 121. Same — Rule in Alabama — First degree. Sec. 122. Same — Rule under federal statutes. Sec. 123. Same — Provocation causing passion — What provocation suf- ficient. Sec. 124. Same — Words towards slayer. Sec. 125. Same — Intoxication of deceased. Sec. 126. Same — Rule in Georgia. Sec. 127. Same — Rule in New York. Sec. 128. Same — Cooling time. Sec. 129. Same — Interview sought by defendant. Sec. 130. Same — Words toward female relative. Sec. 131. Same — Words spoken in defendant's absence. Sec. 132. Same — Difficulty begun by defendant. Sec. 133. Same — Banter by deceased. Sec. 134. Same — Wound given by deceased. Sec. 135. Same — Killing in liouse of deceased. Sec. 136. Same — Striking with fist or weapon. Sec. 137. Same — Shooting unarmed adversary — Provocation. Sec. 138. Same — Killing attacking officer — Pursuit by ofiicer. Sec. 139. Same — Cooling time. Sec. 140. Same — Instruction as to adequate cause — Passion as criterion. Sec. 141. Same — Acts of preparation — Preparing weapon. Sec. 142. Same — Preventing defendant's dei)arture. Sec. 143. Same — By the killing of anotlier. Sec. 144. Same — By adultery witli the slayer's wife. Sec. 145. Same — By criminal intimacy witli a female relative. Sec. 146. Mutual conibat. Sec. 147. Same — Equal terms. Sec. 148. Same — Previous malice not presumed. Sec. 149. Trespass. Sec. 150. Homicide in resisting arrest. 138 SEC. 116.] MANSLAUGHTER. 139 Sec. 151. Same — Attempted arrest by officer witliout warrant. Sec. 152. Homicide in making arrest. Sec. 153. Homicide wliile committing an unlawful act less than felony. Sec. 154. Ivilling one in an attempt to kill anollier. Sec. 155. Homicide in preserving peace. Sec. 156. Involuntary nianslaugliter — What constitutes. Sec. 157. Same — How committed — By gross carelessness or negligence. Sec. 158. Same — Negligent use of firearms. Sec. 159. Same — Misconduct and negligence in steamboat navigation. Sec. 160. Same — By assault. Sec. 161. Same — By attempting abortion. Sec. 102. Same — By threats causing fright. Sec. 163. Same — By undue correction by persons in authority. Sec. 164. Same — Upon person under arrest. Sec. 165. Same — By obstructing railroad track. Sec. 116. Definition. — Manslaughter is tlie unlawful kill- ing of a liunian being witliout malice, either express or im- plied, and without excuse.^ Manslaughter is distinguished from nuirder by the absence of the malice, either express or 1 2 Bouv. L. Diet. (15th ed.) 149. See People v. Crowey, 56 Cal. 36 (1880) ; People r. Freel, 48 Cal. 436 (1874); People v. March, 6 Cal. 543 (1856); People v. Milgate, 5 Cal. 127 (1855); Hadley v. State, 58 Ga. 309 (1877) ; Stcdces r. State, 18 Ga. 17 (1855) ; Studstill v. State, 7 Ga. 2 (1849) ; Keynolds v. State, 1 Kelly (Ga.) 222 (1846); Murphy v. People, 37 111.448 (186.3); Murphy r. State, 31 Ind. 511 (1869); Cummonicenlth v. Websler, 59 Mass. (-5 Cush.) 295 (1850); ConimonueMlth r. Riley, Thach. C. C. (Mass.) 471 (1837); Commonwealth V. Selfridge (Mass.), 1 Horr. & T. 2 (1806); s.c. Whart. Hom. (2d ed.) 692; State v. Knight, 43 Me. 11 (1857) ; Long r. State, 52 Miss. 23 (1876) ; Green v. State, 28 Miss. 687 (1855) ; State v. Zellers, 7 N. J. L. (2 Halst.) 221 (1824) ; Ex parte Tayloe, 5 Cow. (N. Y.) 51 (1825) ; People V. Austin, 1 Park. Cr. Cas. (N. Y.) 154 (1847); United St.ates v. Travers (N, Y.), 2 Wheel. Cr. Cas. 506 (1814) ; State i'. Johnson, 3 Jones (N. C.) L. 266 (1855) ; State v. Nor- ris, 1 Hayw. (N. C.)'429 (1796); State V. Turner, Wright (Ohio) 23 (1831) ; Commonwealth v. Drum, 58 Pa. St. 9 (1868) ; Pennsylvania r. Lewis, Addis. (Pa.) 279 (1796) ; State V. Smith, 10 Rich. (S. C.) L. 341 (1857) ; State v. Stark, 1 Strobh. (S. C.) L. 479 (1847) ; Beets v. State, Meigs (Tenn.) 106 (1838) ; Isaacs V. State, 25 Tex. 174 (1860) ; Drake V. State, 5 Tex. App. 661 (1879) ; King I'. Commonwealth, 2 Va. Cas. 78 (1817); Commonwealth v. Mitch- ell, 1 Va. Cas. 116 (1796) ; McWiiirt's Case, 3 Gratt. (Va.) 594 (1846) ; Respublica v. Mulatto Bob, 4 U. S. (4 Dall.) 146 (1795), bk. 1 L. ed. 776; United States v. Outerbridge, 5 Sawy. C. C. 620 (1868) ; United States v. Wiltberger, 3 Wash. C. C. 515 (1819) ; Rex v. Mawgridge, Ke- lynge 119 (1665) ; Lord Conwallis' Case, 2 St. Tri. (fol. ed.) 730 (1678); s.c. 7 How. St. Tr. 144; 4 Bl. Conim. 190; 2 Bish. Cr. L. (7th ed.) § 672; Desty Cr. L. § 128; East P. C. 232; 1 Hale P. C. 466; Harris' Cr. L. 169 ; 1 Hawk. P. C, c. .30, §§ 2, 3; Roscoe's Cr. Ev. 723; 1 Russ. on Cr. (5th Eng. ed.) 810; Stephen's Cr. L. Art. 223-, 140 HOMICIDE. [chap. VI. implied, which is the essence of murder : ^ but it has been said that it is no defence to an indictment for manslaughter that the evidence shows the homicide to have been committed with malice aforethought, and, therefore, to have been mur- der ; but that the defendant may be convicted of manslaugh- ter as charged in the indictment. In Commonwealth v. McPike,^ the court say : " The party on trial has no reason- able ground for complaint. The government have elected to proceed against him for the minor offence, and the defend- ant has secured to him all the privileges which are incident to a trial for such offences. It is not for him to say that his crime has another element in it, which if charged in the indictment, would have constituted it a higher offence and one more severely punishable." The two crimes are also distinguished by the fact that in manslaughter there can be no accessories before the fact, be- cause there is no time for premeditation or deliberation upon the act.^ Sec. 117. Distinction between manslaughter and mur- der — Moral character of manslaughter. — Manslaughter differs from murder in this, that, though the act which occa- Wash. Cr. L. 80; Anderson's L. Diet. 654. 1 See People v. Crow3% 56 Cal. 36 (1880) ; People v. Freel, 48 Cal. 436 (1874) ; People v. March, G Cal. 543 (1850) ; Peoi)le v. Mil<,^ate, 5 Cal. 127 (1855) ; Iladley v. State, 58 Ga. 309 (1877); Stokes v. State, 18 Ga. 17 (1855) ; Murphy v. People, 37 111. 448 (18fi5) ; Murphy v. State, 31 Ind. 511 (1860) ; State v. Knifrht, 43 Me. 11 (1857) ; Coiiimonwealth v. Wehs/er, 69 Mass. (5 Cush.) 295 (1850) ; Com- monwealth r. Selfridj^e (Mass.) 1 Horr. & T. 2 (1806) ; s.c. Whart. Horn. (2d ed.) 692 (18 ); Green v. State, 28 Miss. 687 (1885) ; Ex parte Tayloe, 5 Cow. (N. Y.) 51 (1825); United States r. Travers, 2 Wlieel. Cr. Cas. (N. Y.) 506 (1814) ; State v. Johnson, 3 Jones (X. C.) L.266 (1855); State V. Turner, Wright (Ohio) 23 (1831); Coinmoinvealth v. Drum, 58 Pa. St. 9 (1868) ; I'ennsylvania r. Lewis, Addis. (Pa.) 279 (1796) ; State V. Tookey, 2 Rice (S. C.) Dig. 104 (1838) ; State v. Smith, 10 Rich (S. C.) L.341 (1857) ; State v. Stark, 1 Strohh. (S. C.) L. 479 (1847) ; King V. Commonwealth, 2 Va. Cas. 78 (1817) ; Commonwealth v. Mitch- ell, 1 Va. Cas. 116 (1796) ; xMcWhirt's Case, 3 Gratt. (Va.) 594 (1846); liespuhlica r. Mulatto Bob, 4 U. S. (4 Dall.) 146 (1795) ; bk. 1 L. ed. 776 ; United States v. Outerbridge, 5 Sawy. C. C. 620 (1868) ; United States V. Wiltberger, 3 Wash. C. C. 515 (1819) ; 4 Bl. Comm. 190; 2 Bish. Cr. L. § 672; Desty Cr. L. § 128; East P. C. 232; 1 Hale P. C. 4(;(; ; Moore Cr. L. § 309; Wash. Cr. L. 80. -' 57 Mass. (3 Cush.) 181 (1849). 3 1 Bish. Cr. L. (3d ed.) 678; 2 Bouv. L. Diet. (15th ed.) 149 ; 1 Hale P. C. 437; 1 Russ. on Cr. (5th Eng. ed.) 485. SEC. 119.] MANSLAUGHTER. 141 sions the death be uiihiwful, or likely to be attended with bodily mischief, yet the malice, either express or implied, is presumed to be wanting ; and the act being imputed to the infirmity of luunan nature, the punishment is proportionably lenient.^ Harris says that in manslaughter " Ave shall find^ acts varying to tlie utmost in their moral gravity and offen- siveness. Perhaps on no other charge do persons more often appear in the dock and leave it without a stain on their char- acter. To take one class of examples, it constantly happens after an accident in a mine or on a railway that some of those engaged in the mismanagement of the one or the other are required to meet the charge of manslaughter preferred against them." Sec. 118. Kinds of manslaiigiiter. — At common law manslaughter is of two kinds, namely, voluntary manslaugh- ter, resulting from an injury intentionally inflicted ; and in- voluntary manslaughter, resulting from injury unintentionally inflicted."^ Dr. Wharton thinks that this distinction between voluntary and involuntary manslaughter is now obsolete in most jurisdictions ; as concerns the common law, he says that " unless it should be required by the statute, the terms ' vol- untary ' and ' involuntary ' are not introduced now either in the indictment, verdict, or sentence." ■* Sec. 119. Voluntary niauslaug liter defined. — Voluntary manslaughter is homicide committed witli design or intent to kill or to inflict some serious bodily liarm,^ formed upon a sudden quarrel in the first transport of passion, and before reason has time to resume her entire control.'' To constitute 1 See 1 Russ. on Cr. (5th Bug. ed.) (1869) ; Nye v. People, 35 Mich. 16 810. (1876) ; Ex parte Tayloe, 5 Cow. 2 Harris' Cr. L. (3d ed.) 169. (N. Y.) 51 (1825) ; Enrin v. State, 29 3 See Anderson's L. Diet. 654; 2 Oliio St. 186 (1876) ; s.c. 23 Am. Bouv. L. Diet. (15th ed.) 149; 1 Rep. 732; 2 Am. Cr. Rep. 251 ; Coni- Whart. Cr. L. (9th ed.) §§ .304, 305. monwealth ,-. Drum, 58 Pa. St. 9 * Whart. Cr. L. (9th ed.) § 305. (1868); State v. Smith, 10 Rich. See Whart. Horn. (2d ed.) § 7. (S. C.) L. 341 (1857) ; Kin^ r. Coni- 5 See Perry v. State, 43 Ala. 21 monwealth, 2 Va. Cas. 78 (1817) ; (1860) ; People v. Jamarillo, 57 Cal. 1 Bl. Comm. 190; Desty Cr. L. § 108 b; 111 (1880); Brown v. State, 28 Ga. 1 East P. C. 232 ; Harris' Cr. L. (3d 215(1859); Stokes ?;. State, 18 Ga. 17 ed.) 169; 1 Hawk. P. C, c. 30, § 3 ; (1855) ; Bruiier r. State, 58 Ind. 159 Whart. Cr. Horn. § 5. (1877) ; Murphy v. State, 31 Ind. 511 « Schnier y.People,23ni.21 (1859); 142 HOMICIDE. [chap. VI. voluntary manslaughter, the killing must be clone when the reason is disturbed or obscured by passion to an extent which might render ordinary persons liable to act rashly Avithout reflection, and from passion rather than judgment; there must be an adequate provocation for the passion, and the killing must be without previous malice.^ Sec. 120. Reducing homicide to manslaughter. — To reduce homicide from murder to manslaughter, it is not neces- sary that " the reason of the party should be dethroned," and that he should act " in a whirlwind of passion " ; but there must be sudden passion upon reasonable provocation, to nega- tive the idea of malice. ^ A positive intent to kill is not requisite if there be an in- tentional use of unlawful force wrongly, calculated to cause death or great bodily harm.^ Powers r. State, 87 Ind. 154 (1882) ; Trimble v. Commonwealth, 78 Ky. 177 (1879) ; State v. Griffin, 34 La. An. 38 (1882); State v. Zellers, 7 N. J. L. (2 Halst.) 243 (1824) ; Kil- patrick v. Commonwealth, 31 Pa. St. 201 (1858); McWhirt's Case, 3 Gratt. (Va.) G05 (1846); Anderson's L. Diet. 654 ; 4 Bl. Comm. 191-193. 1 Smith V. State, 83 Ala. 26 (1887) ; s.c. 3 So. Rep. 551 ; Ex parte Brown, Go Ala. 446 (1880); Perry v. State, 43 Ala. 21 (1869) ; State r. Rhodes, 1 Houst. Cr. Cas. (Del.) 476 (1877) ; Fogarty v. State, 80 Ga. 450 (1888) ; s.c. 5 S. E. Rep. 782 ; Gann v. State, 30 Ga. 67 (1860); Stokes v. State, 18 Ga. 17 (1855); Bruner r. State, 58 Ind. 159 (1877); Murphy v. State, 31 Ind. 511 (1869) ; Ex parte Moore, 30 Ind. 197 (1868) ; Creek v. State, 24 Ind. 151 (1865) ; State v. Hockett, 70 Iowa, 442 (1886) ; s.c. 9 Cr. L. Mag. 208; 30 N. W. Rep. 742; State v. Spangler, 40 Iowa, 365 (1875) ; State V. Dcfklotts, 19 Iowa, 447 (1865) ; Maker v. reople, 10 Mich. 212 (1862); S.c. 81 Am. Dee. 781 ; Kilpatrick v. Commonwealth, 31 Pa. St. 198 (1858); Young V. State, 11 Humph. (Tenn.) 200 (1850) ; Seals v. State, 59 Tenii. (3 Baxt.) 459 (1874) ; Hinton v. State, 24 Tex. 454 (1859). - Young I'. State, 11 Humph. (Tenn.) 200 (1850). 3 Williams V. State, 83 Ala. 16 (1887) ; s.c. 3 So. Rep. 616; Harring- ton (;. State, 83 Ala. 9 (1887) ; s.c. 3 So. Rep. 425; White v. State, 84 Ala. 421 (1887); s.c. 4 So. Rep. 598; McManus v. State, 36 Ala. 285 (1860) ; Montgomery v. State, 11 Ohio, 424 (1842). An instruction as to manslaughter, as follows : " If you find from the evidence beyond a reasonable doubt, that the defendant . . . did take the life of the said James Fowler by means of the weapon described in the indictment . . . and that the killing, if any, was done in the heat of blood or passion, upon a sudden quarrel, and upon reasonable provocation, and without malice, express or implied, and you further so find that it was not excusable or justifiable ... he is guilty of manslaughter," — is a clear, concise, and correct definition of manslaughter as applicable to the evidence. State i\ Ilockett, 70 Iowa, 442 (1880); s.c. 9 Cr. L. Mag. 208; 30 N. W. Kep. 742. SEC. 123.] MANSLAUGHTER. 143 Sec. 121. Same — Rule in Alabama — First degree. — To constitute jnurder in the first degree under the Alabama Code 1 tliere must be either a positive intention to kill, or an act of violence from which, ordinarily, in the usual course of events, death or great bodily harm may result.^ If an act amounting to manslaughter be voluntarily committed, the statute, without regard to the circumstances of provocation, fixes the grade of the offence, and pronounces it manslaugh- ter in the first degree.'^ Sec. 122. Same — - Rule undei* federal statutes. — Under the provisions of the judicial act^ giving jurisdiction to the circuit courts of the United States, over murder committed on the high seas, the death as well as the mortal blow must occur on the high seas. The federal courts have no cogni- zance of the case where the wound was given on high seas but the death took place on shore.^ There is no act of Congress which makes punishable an unlawful stroke on the sea, without malice, followed by death on shore ; but the guilty person may be convicted of an assault with a dangerous weapon.^ Sec. 123. Same — Provocation causing passion — What provocation sufficient. — • The provocation sufficient to re- duce an intentional killing from the grade of murder to that of manslaughter must arise at the time of the commission of the offence, or before the passion of the slayer has had time to cool." The provocation by deceased must be the direct 1 Alabama Code, § 4301. " Studstill r. State, 7 Ga. 2 (1849) ; 2 Harrington r. State, 83 Ala. 9 Patterson r. State, 66 Ind. 190 (1879) ; (1887); s.c. 3 So. Rep. 425; qualifying Bechtelheiiner v. State, 54 Ind. 1:^8 McManus 1-. State, 36 Ala. 285 (1860). (1876); Wall v. State, 51 Ind. 4-53 3, Johnson r. State, 17 Ala. 618 (1875); Field v. State, 60 Ind. 15 (1850). (1875) ; Allison v. State, 42 Ind. *§ 11. 354 (1873); Miller v. State, 37 Jml. 5 United States v. McGill, 4 U. S. 432 (1871) ; Murphy ;;. State, 31 Ind. (4 Dall.) 426 (1806); bk. 1 L. ed. 511 (1869); Ex parte Moore, 30 Ind. 894; United States v. MagiU, 1 Wash. 197 (1868) ; Commonwealth v. xMink, C. C. 463 (1806). Compare United 123 Mass. 422 (1877) ; Commonwealth States r. Bladen, 1 Cr. C. C. 548 v. Webster, 59 Mass. (5 Ciish.) 295 (1809) ; United States v. Armstrong, (1850) ; Commonwealth v. Seifridge 2 Curt. C. C. 440 (1855); United (Mass.), 1 Horr. & T. 2 (1806) ; Corn- States V. Imbert, 4 Wash. C. C. 702 monwealth v. Drum, 58 Pa. St. 9 (1827). (1868) ; Boyett v. State, 2 Tex. App. 6 United States v. Armstrong, 2 93 (1878); United States v. WjU- Curt. C. C. 446 (1855). berger, 3 Wash. C. C. 515 (1819). 144 HOMICIDE. [chap. VI. and controlling cause of the passion ; ^ and it must be such as naturally and instantly to produce, in the minds of per- sons ordinarily constituted, the highest degree of exaspera- tion, rage, anger, sudden resentment, or terror, rendering the mind incapable of cool reflection.'-^ Thus ordinary provoca- tion given by a woman or child to a man of average strength, even though it may amount to giving a blow, does not, it seems, reduce a homicide from nun-der to manslaughter, because manifestly not sufficient to cause uncontrollable pas- sion.3 The question whether certain undisputed facts are sufficient provocation to reduce a homicide from a murder to manslaughter is one of law, for determination by the court ; * but the questions whether, in the particular case under con- sideration, there was adequate and reasonable provocation, and whether the passions had had reasonable time to subside, are generally for the jury to determine.^ Sec. 124. Same — Words towards slayer. — Mere words towards the slayer by deceased, however grievous, are not sufficient to reduce a killing from murder to manslaughter ; nor are indecent, provoking actions, or gestures, expressive of reproach or contempt,*^ although the use of insulting or 1 Boyett V. State, 2 Tex. A pp. 03 (1878)." 2 Flanagan v. State, 46 Ala. 703 (1871) ; People v. Freeland, Cal. 96 (18-30); Silgar v. People, 107 111. 563 (1883) ; Patterson v. State, 60 Inil. 185 (1879) ; Nichols v. Common- wealth, U Bush (Ky.) 575 (1875)-; Thomas v. State, 61 Miss. 00 (1883) ; Preston v. State, 25 Miss. 383 (1853) : State V. Ellis, 74 Mo. 207 (1881) ; 1 Whart. Or. L. (0th ed.) 455; McKin- ney r. State, 8 Tex. App. 620 (1880) ; Boyett V. State, 2 Tex. App. 93 (1878) ; Territory v. Catton (Ttali), 10 Pac. Rep. 902 (1888). •' (-ommonwealth r. Moslrr, 4 Pa. St. 264 (1840). 4 State V. Dunn, 18 Mo. 410 (1853) ; State r. Craton, 6 Ired. (N. C.) L. 1()4 (1845). 5 Mahcr r. People, 10 Midi. 212 (1802) ; s.o. 81 Am. Dec. 781 ; Mackey V. State, 13 Tex. App. 300 (1883). « Watson V. State, 82 Ala. 10 (1886) ; Ex parte Brown, 65 Ala. 446 (1880) ; People r. Murback, 04 Cal. 369 (1883) ; People v. Turley, 50 Cal. 469 (1875); People v. Butler, 8 Cal. 435 (1857) ; State v. Draper, 1 Houst. Cr. Cas. (Del.) 531 (1878) ; State r. Buchanan, 1 Houst. Cr. Cas. (Del.) 79 (1859); Bird v. State, 55 Ga. 317 (1875) ; Jackson v. State, 45 Ga. 198 (1872); Boss v. State, 59 Ga. 248 (1877); Hawkins v. State, 25 Ga. 207 (1858) ; Happ v. Commonwealtli, 14 B. Mon. (Ky.) 615 (1854) ; State r. Leonard, La. An. 420 (1851); Stater. Fuentes, 5La. An. 427 (1850) ; State r. McNeill, 92 N. C. 812 (1885) ; State )•. Carter, 70 N. C. 20 (1877) ; State V. Lipsey, 3 Dev. (N. C.) L. 485 (1832); State v. Merrill, 2 Dev. rX. C.) L. 209 (1829) ; State v. Taek- ett, 1 Hawks. (N. C.) L. 210 (1828) ; Wall r. State, 18 Tex. 082 (1857); United States v. Carr, 1 Woods C. C. SEC. 128.] MANSLAUGHTER. 145 abusive or violent language may give sufficiency to an assault otherwise insufficient.^ Sec. 125. Same — Intoxication of deceased. — It is said in the case of Harris v. State,^ that where one kills another on mere provocation by words, the jury may consider the fact that the person killed was drunk when he uttered the words, when the question is whether the words were uttered with a deliberate purpose, or are merely low and idle expressions, also whether the deceased was struck when he uttered the words, in determining whether there was an excuse for the assault of the accused on the deceased. Sec. 12(3. Same — Rule in Georgia. — It has been said that the language of the Georgia Code,'^ providing that " prov- ocation by words, threats, menaces, or contemptuous gestures shall in no case be sufficient to free the person killing from the guilt and crime of murder," does not imply that provoca- tion by mere threats, &c., can excuse a homicide committed under circumstances rendering it manslaughter.* Sec. 127. Same — Rule in New York. — Under the rule in New York the "heat of passion," mentioned in the statu- tory definition of manslaughter, affords the intended protec- tion to the accused, whether the provocation was produced by acts or words, if the provocation was such as was ade- quate to produce it.^ Sec. 128. Same — Cooling time.^ — In the case of State V. Jacobs," the defendant visited his tenant and remonstrated with him about burning rails, and as the defendant was about 480 (1872) ; 1 Arch. C. Pr. 740 ; East Seals v. State, 59 Tenn. (3 Baxt.) 459 P. C. 251; Harris' Cr. L. (3d ed.) (1874). 169; Steph. Cr. L. art. 223 et seq.; i Reg. v. Smith, 4 Fost. & F. 1099 Washb. Cr. L. 81; Whart. Horn. (2d (1865). ed.) § 393 et seq.; 1 Hale P. C. 456. 2 34 Ark. 469 (1879). See Commonwealth ;;. Biron, 4 U. S. ^ Georgia Code, § 4259. (4 Dall.) 125 (1792); bk. 1 L. ed., * Jackson v. State, 45 Ga. 198 769. Compare Harris v. State, 34 (1872). Ark. 469 (1879) ; Wilson v. People, ^ Wilson v. People, 4 Park. Cr. 4 Park. Cr. Cas. (N. Y.) 619 (1859) ; Cas. (N. Y.) 619 (1859). State V. Jacobs, 28 S. C. 29 (1887) ; « See ante, § 68 ; post,^ 139. s.c. 4 S. E. Rep. 799 ; Bonnard v. "^ 28 S. C. 29 (1887) ; s.c. 4 S. E. State, 25 Tex. App. 173 (1888) ; s.c. Rep. 799. 7 S. W. Rep. 862 ; 8 Am. St. Rep. 431 ; 146 HOMICIDE. [chap. VI. leaving, the deceased addi-essed abusive language to him. Shortly afterwards the defendant returned and shot deceased. In order to reduce the killing under such circumstances to manslauo'hter it must have been done before there had been time for the passion to cool; consequently it was important to consider whether the killing was done in consequence of what had occurred when defendant was first at deceased's house, or when he came last. Sec. 129. Same — Interview sought by defendant. — In a case where the evidence showed that the defendant, without hostile intent, sought an interview with deceased, who be- came enraged and assaulted the defendant, inflicting pain, and the defendant, under tlie passion thus engendered, killed him, it was said that the pain would amount to " ade- quate cause," so as to reduce the killing to manslaughter, and that the failing of the court to affirmatively so charge was error.i In Bonnard v. State ^ the defendant sought deceased to ask pay for certain spurs which he claimed that deceased had stolen from him, and with no intention of provoking a quarrel, but one ensued in which the defendant, in the heat of passion caused by the violence and abuse of the deceased, shot and killed the deceased, and it was held that such killing was manslaughter. The court say : " If defendant did not intend to provoke a difficulty with deceased, but souglit the inter- view with him solely for the purpose of demanding pay for his spurs, and a difficulty ensued in which the defendant, on account of abuse heaped upon him by deceased, voluntarily slew him in heat of passion engendered by the present abuse, taken in connection with the previous wrong done him by deceased, and the circumstances all together combined were of such a character as to produce ' adequate cause ' sufficient to render the mind incapable of cool reflection, then such killing would be manslaughter." ^ 1 Bonnard ?•. State, 25 Tex. App. 205 (1887) ; s.c. 5 S. W. Rep. 231 ; 173 (1888); s.c. 8 Am. St. Uep. 431 ; Jolinson r. State, 22 Tex. App. 206 7 S. \V. Rep. 802. (1887); s.c. 2 S. W. Rep. GOO; Wad- 2 25 Tex. App. 173 (1888); s.c. 8 linfftnn v. State, 19 Tex. App. 266 Am. St. Rep. 4.".1 ; 7 S. W. Rep. 862. (1886). ^ See Howard i-. State, 23 Tex. App. SEC. 130.] MANSLAUGHTER. 147 Sec. 180. Same — Words toward female relative. — Some statutory enactmeilts provide that the use of insulting words towards a female relative of the slayer shall be ade- quate cause, or sufficient provocation, to reduce the killing of the pei-son speaking them from murder to manslaughter. ^ Under a statute whicli uses the term "insulting words towards a female relative," they need not be uttered in her presence. The term includes insulting words concerning her, whether she was present or not ; ^ and it has also been lield that the Avords need not be uttered in the presence of the slayer in order to constitute an adequate cause for the liomicide,^ but where they are not so uttered, it must appear that before the homicide the defendant was informed of them, and that he killed by reason of the passion so induced, and from no other cause.* During the lifetime of a man's wife, her daughter is his " female relative " within the meaning of such a statute.'' As to what are " insulting words " towards a female relative it has been said that the expression '' damned son of a bitch " is not within the legal meaning of the terms '' insulting words toward a female relative," as those words are used in the statute defining manslaughter.^ The Texas Penal Code makes a homicide manslaughter and not murder where it is induced by insulting words or conduct toward defendant's female relative, if the killing occurred as soon as the parties met after knowledge of the insult; thus it is said in the case of Richardson v. State,' which was a trial for murder, that it was error to refuse an 1 See People v. Turley, 50 Cal. 4G9 (1870) ; Hill v. State, 5 Tex. App. 2 (1875); Williams v. State, 3 Heisk. (1879). (Teiin.) .377 (1872) ; s.c. 1 Gr. Cr. - Hudson v. State, Tex. App. 505 ]?ep. 255; Williams r. State, 24 Tc-x. (1879). App. 637 (1888) ; s.c. 7 S. W. Kep. - Xiland v. State, 19 Tex. App. 160 333 ; Melton v. State, 24 Tex. App. 47 (188()). (1888) ; s.c. 5 S. W. Rep. 652 ; Sim- •* Orman v. State, 22 Tex. App. 604 mons^•.State,23 Tex. App. 653 (1887); (1887); s.c. 58 Am. Rep. 662; 3 S. Orman v. State, 22 Tex. App. 604 W. Rep. 408. See Hill v. State, 5 (1887); Clanton v. State, 20 Tex. Tex. App. 2 (1879). App. 615 (1886) ; Niland i: State, 19 s Clayton v. State, 20 Tex. App. Tex. App. 166 (1886) ; Eams v. State, 615 (1886). 10 Tex. App. 421 (1881) ; Richardson '■ Simmons v. State, 23 Tex. App. V. State, 9 Tex. App. 612 (1881) ; 653 (1887) ; s.c. 5 S. W. Rep. 208. Hudson V. State, 6 Tex. App. 565 ' 9 Tex. App. 612 (1881). 148 HOMICIDE. [chap. VI. instruction asked bj tlie accused that if the deceased used insultinsf words or conduct towards a female relative of the accused at the place of the killing, this would constitute a sui^cient adequate cause to reduce the offence from murder to manslaughter, if the defendant be guilty of any offence. Sec. 131. Same — Words spoken in defendant's absence. — In Orman v. State,^ the defendant being informed that the deceased had publicly stated that defendant's mother and sister had accumulated all the money defendant had by pros- titution with negro men, consulted an attorney concerning the punishment for killing under such circumstances, and shortly afterward, upon meeting the deceased, asked him if he would take back what he had said about his mother and sister ; and on his answering '' No," shot and killed him. On trial of the defendant for murder the court charged the jury that they should find defendant guilty of manslaughter if they believed that the shooting was done "under the immediate influence of sudden passion . . . arising from an adequate cause, such as 'insulting words or conduct' of deceased Howards female relatives' of defendant." This charge was held to be erroneous in requiring- the killing to take place under the immediate influence of "sudden" passion; which instruction would have been proper under the Texas statute '^ only in a case where the defendant heard the insulting language or witnessed the conduct ; and that, notwithstanding no excep- tions were taken nor instructions asked, yet, as there was a strong probability of injiuy to defendant, the judgment would be reversed.'^ Where the evidence sliowed that the deceased made inde- cent proposals to the defendant's wife, and cursed her, in the morning, while the defendant Avas absent ; that his wife told him about it when he returned at noon ; that wlien he met the deceased, at eight o'clock in the evening, he killed him, the court held that to reduce the homicide to manslaughter, the provocation under which the defendant acted must have arisen at the time of the commission of the offence.'* 1 22 Tex. App. 604 (1887) ; s.c. 58 (1887) ; s.c. 58 Am. Hop. 002 ; 3 S. W. Am. Rep. 002 ; .3 S. W. Rep. 408. Rep. 4()8. 2 Tex. Pen. Code, art. 509. * Williams c. State, 24 Tex. App. 8 Orman v. State, 22 Tex. App. 004 637 (1888) ; s.c. 7 S. W. Rep. 733. SEC. 131.] MANSLAUGHTER. 149 In Melton v. State,^ wliere the defendant killed the de- ceased for using insulting language concerning his daughter, but not until the second meeting after he was informed of the insults, the court held that under these facts the homi- cide was not manslaughter. An assault by the deceased, where not a justification or excuse, may still be sufficient provocation to reduce the kill- ing to manslaughter ; and ordinarily the provocation is com- plete when the persoii of tlie defendant is touched, with apparent insolence, whether the assailant was armed or not.''^ But it is thought that it is not every assault that will reduce a homicide from murder to manslaughter. A blow with the hand may or may not afford such provocation as to reduce the crime of killing to manslaughter, according to the facts and attendant circumstances.^ On a trial for murder by shooting the deceased, an instruc- tion that, " if the jury believed from the evidence that imme- diately before the firing of the pistol by the defendant the deceased had assaulted the defendant, or had given to him a serious and highly provoking injury sufficient to excite an irresistible passion in a reasonable person, and that such provo- 1 24 Tex. App. 47 (1888) ; s.c. 4 Anderson, 4 Nev. 265 (1868) ; State S. W. Rep. 574. v. Crane, 95 N. C. 619 (1886) ; State v. 2 See Stewart v. State, 78 Ala. 4-36 Gaskins, 93 N. C. 547 (1885) ; State (1885) ; Ex parte Warrick, 73 Ala. 57 v. Tackett, 1 Hawk. (N. C.) L. 210 (1882) ; Judge v. State, 58 Ala. 406 (1820) ; State v. Yarbrough, 1 Hawks. (1877) ; Atkins v. State, 10 Ark. 568 (N. C.) L. 78 (1820) ; State v. Bar- (1855); McCoy v. State, 8 Ark. 451 field, 8 Ired. (N. C.) L. 344 (1848); (1848) ; People v. Turley, 50 Cal. State v. Sizemore, 7 Jones (N. C.) L. 469 (1875) ; State v. List, 1 Houst. 206 (1859) ; State v. Ramsey, 5 Jones Cr. Cas. (Del.) 133 (1863); State v. (X. C.) L. 195 (1857); State v. Brod- Downliam, 1 Houst. Cr. Cas. (Del.) nax, Phil. (N. C.) L. 41 (1866) ; Com- 45 (1858) ; Bird v. State, 55 Ga. 317 monwealth v. Drum, 58 Pa. St. 9 (1875); Thompson r. State, 55 Ga. (1868); Draper v. State, 4 Baxt. 47 (1875) ; Evans v. State, 33 Ga. 4 (Tenn.) 246 (1874) ; Holly v. State, (1861) ; Golden v. State, 25 Ga. 527 10 Humph. (Tenn.) 141 (1849) ; Bon- (1858) ; McGuffie v. State, 17 Ga. 497 nard v. State, 25 Tex. App. 173 (1888) ; (1855) ; Ray v. State, 15 Ga. 223 s.c. 8 Am. St. Rep. 431 ; 7 S. W. Rep. (1854); State f. Fitzsimmons, 63 Iowa, 862; Williams v. State, 15 Tex. App. 656 (1884) ; s.c. 19 N. W. Rep. 821 ; 617 (1884) ; Ruthford v. State, 15 Tex. State V. Abarr, 39 Iowa, 185 (1874); App. 236 (1884); Tickle v. State, 6 Kurd V. People, 25 Mich. 405 (1872) ; Tex. App. 623 (1879) ; United States State V. Rheams, 34 Minn. 18 (1885) ; v. Armstrong, 2 Curt. C. C. 446 (1855) ; State V. Watson, 95 Mo. 411 (1888) ; I Wliart. Cr. L. (9th ed.) § 456. States. Blunt, 91 Mo. 503 (1887); State 3 Stewart v. State, 78 Ala. 436 V. Levigne, 17 Nev. 435 (1883) ; State v. (1885). 150 HOMICIDE, [chap. VI. cation did excite in the defendant a sudden violent impulse and irresistible passion, and that acting under such passion he, the defendant, fired upon and killed the deceased, the jury should find the defendant guilty of manslaughter," was held to be erroneous, because it is not every assault that will reduce a homicide from murder to manslaughter. The proof in this case showed that if there was any assault on the pris- oner by the deceased, it was of the slightest kind.^ Throwing a chair over the head will not be sufficient provo- cation to reduce a homicide to manslaughter where the de- ceased and the prisoner were quarrelling, and as the prisoner approached the deceased he pitched over his head a chair, without touching him, and with no apparent intention to do so, because this was no provocation, as nothing less than an actual assault, or battery, or an attempt to assault within striking distance, is a legal provocation to reduce murder to manslaughter.^ Sec. 132. Same — Difficulty bejfun l>y defendant. — Where the difficulty was begun by the defendant, and homi- cide results, it will be simply manslaughter, if there was no premeditated design to kill. Thus where A had posses- sion of ore belonging to B, which B demanded, and which A refused to give up unless he should be paid twenty-five dollars, B drew a pistol with threats ; A got the pistol away from B, and threw him down and beat him ; B arose, drew another pistol, and shot and killed A ; the court held that a verdict of manslaughter was not impro})erly rendered, and that instructions under which B would have been found not guilty were properly refused.'^ It is said in Ex parte Warrick * that if, immediately pre- ceding the striking of the fatal blow, the defendant was "grabbed at by deceased," who was considering to strike him, the homicide would not be above voluntary manslaughter. In Thompson v. State ^ opprobrious words were used by the defendant to the deceased, and the latter struck him with a small walking-stick. The court held that the blow could not 1 State V. Anderson, 4 Nev. 205 ^ State v. Lcvignc, 17 Nev. 435 (18(;S). (18H:}). 2 State V. Barfield, 8 Ired. (N. C.) •* 7:5 Ala. 57 (1882). L. 344 (1848). 6 65 Ga. 47 (1875). SEC. 136.] MANSLAUGHTER. 151 be considered as such considerable jn'ovocation as ^yolIld rebut the presumption of malice on the part of the defendant in killing the deceased, provided the battery was not dispropor- tioned to the insult offered. Sec. 133. Same — Banter by deceased. — In McGuffie V. State,^ it is said that where one person presents a gun to another and subsequently takes it down, and the other de- clared that if raised again he would throw a brickbat at him, and the gun was raised, and the brickbat was thrown, and B Avas shot, in consideration of the threat or banter of B, such killing may have been no more than voluntary manslaughter, and the court say that it was error in the trial court to charge that " if the first presenting of the gun was with malicious intent, notwithstanding wliat followed, the killing was mur- der." Sec. 134. Same — Wound given by deceased. — A wound given by the deceased is not in all cases sufficient cause to justify a homicide. Thus it ha:i been held in North Carolina,'^ in a case where A and B wanted to fight but were prevented, A going away, and on his return B presented a loaded gun and ordered A to stand ; A then went away again and returned with a gun ; whereupon B shot and wounded A and set down his gun, and A shot and killed B ; and the court held that he was guilty of murder. Sec. 135. Same — Killing in house of deceased. — It is said in McCoy v. State ■" that a man has a right to order an- other to leave his house, but has no right to put liim out by force until gentle means fail; and if he attempt to use vio- lence in the outset and is slain, it will not be a higher offence than manslaughter in the slayer, if there be no previous malice. Sec. 136. Same — Striking with list or weapon. — It has been said that where a person on being struck a heavy blow with the fist, a moment after wounds his assailant with a deadly weapon from which wound death ensues, he is guilty of manslaughter only.* 1 17 Ga. 497 (1855) . ■* State r. Tackett, 1 Hawks. (N. C.) 2 State?;. Crane, 95 N.C. 619 (1886). L. 210 (1820); State v. Yarbrough, 3 8 Ark. 451 (1848). 1 Hawks. (N. C.) L. 78 (1820). 152 HOMICIDE. [chap. VI. It is held in State v. Curiy^ that when one person strikes another a violent blow with a heavy pole pointed with iron, and a fight ensnes, in which the assailant used a deadly weapon, with which he knocks down his adversary and dis- ables him, and follows up his blows with great violence and cruelty, and kills him ; on account of the great provocation in the first instance and the passion naturally produced by the conflict, this is but manslaughter. Sec. 137. Same — Shooting' unarmed adversary — Prov- ocation. — One who in the daytime, in the presence of by- standers to whom he might have appealed for protection, shoots an unarmed drunken man with whom he is struggling and from whom he is in possible danger of receiving a thresh- ing, and after once shooting him follows as he runs and shoots him again, is guilty of manslaughter.'^ Sec. 138. Same — Killings attacking- officer — Pursuit by officer. — In State v. Cantieny,'^ on the trial of an indict- ment for murder, the evidence showed that tlie defendant and two companions were on the streets of a city at three o'clock in the morning, and were somewhat intoxicated and disor- derly ; that the deceased, a police officer, attempted to induce them to leave the streets; that they resisted his efforts, and tried to get his club away from him ; that the deceased arrested them, and the defendant ran ; that during pursuit, and before the deceased had discharged his pistol, although he had at- tempted to do so, the defendant drew a revolver and continued fleeing ; that the deceased shot at him without effect, and the defendant instantly turned and shot the deceased, inflicting a fatal wound; the court held that a verdict of manslaughter in the second degree would be sustained. Where one fired a pistol at an officer and fled to his house pursued by the latter, who, with a pistol in his hand and with threats to kill the former, forced o})en the door, and was him- self killed in the rencontre which ensued, it was held that the killing amounted only to manslaughter.* 1 1 Jones (X. C.) L. 280 (1854). 3 PA Minn. 1 (1885) ; s.c. 6 Am. Cr. 2 State I-'. Fitzsininioiis, O-"] Iowa, Ecp. 418. 656 (1884); s.c. 19 N. \V. Uep. 821. ■* State v. List, 1 Houst. Cr. Cas. (Del.) 133 (1863). SEC. 141.] MANSLAUGHTER. 153 Sec. 139. Same — Cooling time.^ — It has been said by the supreme court of ^Michigan that where one is assailed and pursued into his house and through one room, if he then arms himself and shoots and kills his assailant, where the whole transaction occupies less than fifteen minutes, that there was no interval for cooling time.^ Sec. 140. Same — Instruction as to adequate cause — Passion as criterion. — In Tickle v. State ^ on a trial for murder, an instruction to the jury to the effect that an assault and battery on the defendant by the deceased would not con- stitute an "adequate cause," such as to reduce the offence to manslaughter, unless it produce severe pain or bloodshed, was held to be erroneous. It seems that the adequate cause which may justify manslaughter may be estimated not by the pain but by passion, notwithstanding the fact that the statute declares that an assault causing pain and bloodshed shall be deemed an " adequate cause." ^ Sec. 141. Same — Acts of preparation — Preparing- weapon. — Acts of preparation to meet and resist an ag- gressor cannot be urged by him as provocation. The draw- ing of a weapon with intent to use it upon one of two brothers present will justify the i)rocurement of a stick with which to resist the intended assault ; and hence possession of a stick will not be such provocation as will reduce to manslaugliter a homicide committed by the assailant.^ Where one laid in wait and shot another dead, the court held that the murder Avas not reduced to manslaughter by the fact that the accused had gone bail for the deceased, who had refused to appear in court according to his recognizance, and had made violent threats to resist his bail, and on the nifflit before the homicide had shot at him in his carriao'e.^ In the case of State v. Abarr," B, a large man, while road- making twenty feet from A, called him lazy ; angry words were exchanged, and B said he could whip A ; A answered, • 1 See ante, §§ 08, 128. 5 People v. Turley, 50 Cal. 469 2 Hurd r. People, 25 Mich. 405 (1875); Bird v. State, 55 Ga. 317 (1872). (1875). 3 6 Tex. App. 023 (1870). « State r. Downliain, 1 Houst. Cr. * See Williams 1-. State, 15 Tex. App. Cas. (Del.) 45 (1858). 617(1884); Putherford i: State, 15 ^ 39 Iowa, 185 (1874), * Tex. App. 236 (1884). 154 HOMICIDE. [chap. VI. " Pitch in, go your length " ; B started towards A and took out and opened a knife almost unobserved ; B attempted to seize him, and A stabbed B at his heart, killing him ; and the court held that a verdict of manslaughter oufjht not to be disturbed. Sec. 142. Same — Preventing defendant's departure. — In the case of State v. Ramsey^ the deceased took hold of the bridle-rein of a horse, on which the prisoner was mounted (who was about to go home from the place where they were), and held it forcibly from ten to forty-five minutes in spite of the efforts of the prisoner to loosen the rein ; and the prisoner, at the end of that time, struck the deceased with a gallon jug of molasses, which he casually held in his hands, several violent blows, the first of which knocked the deceased down; on death ensuing from these blows, it was held to be manslaugh- ter and not murder. Sec. 143. Same — By the killing of another. — The sud- den killing of defendant's friend, causing such rage and resentment as to make the mind incapable of cool reflection, is a provocation sufficient to reduce the killing of the slayer by the defendant from murder to manslaughter.^ Thus it has been said in Moore v. State ^ that "it is a question of fact in this case to be ascertained by the jury, as to the existence or non-existence of such adequate cause as would reduce the killing from murder to manslaughter. If defendants, seeing their friend sbot down, were so aroused by sudden rage and resentment as that their minds were incapable of cool reflection, and, acting under the immediate influence of such sudden passion, they shot and killed the deceased, their offence would have been manslaughter, and not murder." Sec. 144. Same — By adultery with the slayer's wife. — The detection of a person in adultery with the slayer's wife is sufficient provocation to reduce the killing of such person, or of the wife, from murder to manslaughter ; but to consti- 1 5 Jones (N. C.) L. 105 (1857). pare State r. Gut, 13 Minn. 341 2 Moore v. State, 2() Tex. App. 322 (1868). (1889); S.c. 9 S. W. Kcp. 010. Com- ■' 2(i Tex. App. 322 (1889) ; s.c. 9 S. W. Kep. 610. SEC. 146.] MANSLAUGHTER. 155 tute the mitigation, tlie detection must have been in the very act, and the killing immediately upon the detection.^ • Sec. 145. Same — By criiniual intimacy with a female relative. — The fact that the deceased was in criminal intimacy with defendant's sister might be a sufficient provocation to reduce the killing to manslaughter.'-^ It is thought tliat the same is true with regard to any other female relative, or a female in the defendant's charge and control, such as a female ward. In the case of Lynch v. Commonwealth^ L., suspecting his sister was in the act of adultery, took his knife from his pocket, opened it, and forced in her chamber door. He found her rising from her bed, undressed, and a man in bed. He stabbed the man three times with his knife, causing his death. The court held that the provocation was not suffi- cient to reduce the killing to voluntary manslaughter. Sec. 146. Mutual combat. — Where two persons, upon a sudden quarrel, and in hot blood, enter into a fight mutually and upon equal terms, whether with or without weapons, and one is killed, the homicide is manslaughter,* unless tlie com- 1 See Teople v. HurtaJo, 63 Cal. 288 (1883) ; State v. Pratt. 1 Houst. Cr. Cas. (Del.) 249 (18(57) ; s.c. Law. Iiisan. 327 ; Turner r. State, 70 Ga. 767 (1883) ; Biggs r. State, 29 Ga. 723 (1860); Sawyer v. State, 35 Ind. 80 (1871) ; s.c. Law. Insan.790; Mahert-. People, 10 Midi. 212 (1862) ; s.c. 81 Am. Dec. 781 ; People i: Horton, 4 Mich. 69 (1856); State v. Holme, 54 Mo. 153 (1873); State v. France, 76 Mo. 681 (1882); SlmfHin v. People, 62 N. Y. 229 (1875) ; State v. Harman, 78 N. C. 515 (1878) ; State v. Avery, 64 N. C. 608 (1870) ; State v. Jo/,», 8 Ired. (N. C.) L. 330 (1848); s.c. 49 Am. Dec. 396 ; Law. Insan. 787 ; State V. Neville, 6 Jones (N. C) L. 423 (1859) ; State v. Samuel, 3 Jones (N. C.) L. 74 (1855) ; Commonwealth V. Whitler, 2 Brewst. (Pa.) 388 (1868); Reed i: State, 9 Tex. App. 317 (1881); Pearson's Case, 2 Lew. C. C. 216 (1835); Reg. v. Kelh/, 2 Car. & K. 814 (1848); s.c. 61 Eng. C. L. 813; Maddy's Case, 1 Ventr. 158 (1672) ; 1 Whart. Cr. L. (9th ed.) § 459. ■^ Commonwealth v. Lynch. Pittsb. (Pa.) L. J. 412. Compare State r. Hockett, 70 Iowa, 442 (1886); s.c. 9 Cr. L. Mag. 208 ; 30 N. W. Kep. 742. 3 77 Pa. St. 205 (1874) ; s.c. 1 Am. Cr. Rep. 283; Law. Insan. 146. ^ Cates V. State, 50 Ala. 166 (1873); People I'. Sanchez, 24 Cal. 17 (1864) ; State V. Costen, 1 Houst. Cr. Cas. (Del.) 340 (1871) ; State v. O'Neal, 1 Houst. Cr. Cas. (Del.) 58 (1858) ; State V. Davis, 1 Houst. Cr. Cas. (Del.) 13 (1857); Stiles v. State, 57 Ga. 183 (1876) ; Tate v. State, 46 Ga. 148 (1872) ; Irby v. State, 32 Ga. 496 (1861) ; Gann v. State, 30 Ga. 67 (I860) ; Hinch v. State, 25 Ga. 699 (1858) ; Stokes v. State, 18 Ga. 17 (1855) ; State v. Partlow, 90 Mo. 608 (1886); s.c. 4 S. W. Rep. 14; State V. Massage, 65 N. C. 480 (1871); State r. Roberts, 1 Hawks. (N. C.) L. 349 (1821); State v. Floyd, 6 156 HOMICIDE. [chap. VI. bat was sought by one of the parties for the purpose of killing the other.^ If a mutual intent to fight exists, there is a mutual combat, and reduces the homicide to manslaughter, although the first blow kills one of the parties.^ Where a combat is renewed after it has ceased for a time, and killing ensues, the question to be decided is, not whether the defend- ant remained in a state of anger, but whether there had been sufficient time to cool.^ But if one provokes a combat, and in the affray has to kill his adversary in order to save his own life, the killing is not murder, but manslaughter only, if the intent with which the combat was provoked is not a felonious one.^ In State v. O'Neal ^ one of the combatants in a fisfht was *■ killed by a knife after having used a billet heavily loaded at one end, and the court held that this constituted such a provocation as would reduce the crime to manslaughter. Sec. 147. Same — Equal terms. — In the case of Ivhj v. State,^ on the trial of an infant fourteen years of age, for murder, it appeared that his father and the deceased were engaged in a common fist fight, no weapons being used or threatened on either side, and while so engfasred a brother-in- law of the prisoner actually having hold of his father, trying to separate them, the bystanders not otherwise interfering or attempting to do so, the prisoner ran up and shot down his father's antagonist, without warning and without the slight- est necessity for so doing. These facts were held amply sufficient to justify a verdict of "guilty of voluntary man- slaughter." In case of mutual combat, to reduce the offence of taking life from murder to manslaughter, it must appear that the contest was waged upon equal terms, and no undue advan- Jones (N. C.) L. 392 (1859) ; Cope- State, 24 Tex. App. 47 (1888) ; 1 land V. State, 7 Hiiiiipli. (Tenn.) 479 Hale P. C. 4o3 ; 1 Hawks P. C, c. 31, (184ti) ; Spearman v. State, 23 Tex. § 29 ; 1 Whart. Cr. L. (9tli ed.) 482. App. 224 (1887) ; State v. McDonnell, " Tate v. State, 40 Ga. 148 (1872). 32 Vt. 491 (1860); United States v. 3 People v. Sullivan, 7 N. Y. 396 Minfco, 2 Curt. C. C. 1 (1854) ; Desty (1852). Cr. L. § 128 1); Eost. 295; 1 Kuss. on ^ State v. Partlow, 90 Mo. 608 Cr. (5tli Eng. ed.) 811. (1880) ; s.c. 4 S. W. Kep. 14. 1 Tate V. State, 46 Ga. 148 (1872); & 1 Houst. Cr.Cas. (Del.) 58(1858). State r. Underwood, 57 Mo. 46 (1874); c 32 Qa. 49G (1861). B.C. 1 Am. Cr. Kep. 251 ; Melton v. SEC. 149.] MANSLAUGHTER. 157 tage was taken. ^ Thus where a fight sprang up between A and B on one side, and C on the other, and C was killed, it was held, in the absence of any evidence of premeditation, that the act of killing constituted the crime of manslaughter, and that it did not matter whether A or B struck the blow.^ Sec. 148. Same — Previous malice not presumed. — If a person, upon meeting his adversary unexpectedly, who had intercepted him upon his lawful road and in his lawful pur- suit, accepts the fight when he might have avoided it by passing on, the provocation being sudden and unexpected, the law will not presume the killing to have been upon the ancient grudge, but upon the insult given by stopping him on the wa}|( and it will be manslaughter.-^ Sec. 149. Trespass. — A mere civil trespass on the land or property of another, not his dwelling-house, is never suffi- cient to reduce the intentional killing of the trespasser, with a deadly weapon, from murder to manslaughter.'* But where 1 People V. Sanclicz, 24 Cal. 17 (1864). 2 State V. Davis, 1 Houst. Cr. Cas. (Del.) 13 (1857). 3 Copelaiul r. State, 7 Humph. (Tenn.) 479 (1840). * Simpson r. State, 59 Ala. 1 (1877); Noles V. State, 2G Ala. 31 (1855) ; Harrison v. State 24 Ala. 67 (1854) ; Carrol v. State, 23 Ala. 28 (1853); Oliver v. State, 17 Ala. 587 (1850) ; State I'. Woodward, 1 Houst. Cr. Cas. (Del.) 455 (1874) ; State v. Buchan- nan, 1 Houst. Cr. Cas. (Del.) 79 (1859); Hayes v. State, 58 Ga. 35 (1877) ; Keener v. State, 18 Ga. 194 (1855) ; Monroe r. State, 5 Ga. 95 (1848) ; Davison r. People, 90 111. 221 (1878) ; State v. Kennedy, 20 Iowa, 569 (1866) ; State v. Vance, 17 Iowa, 1.38 (1864) ; Commonwealth v. Drew, 4 Mass. 391 (1808) ; People r. Horton, 4 Mich. 67 (1856) ; State V. Hoyt, 13 Minn. 1.32 (1868); State r.Shippey, 10 Minn. 223 (1865) ; Lam- beth V. State, 23 Miss. .322 (1852) ; McDaniel v. State, 16 Miss. (8 Smed. & M.) 401 (1847); People r. Cole, 4 Park. Cr. Cas. (N. Y.) 35 (1857) ; State V. Morgan, 3 Ired. (N. C.) L. 186 (1842) ; State v. Brandon, 8 Jones (N. C.) L. 463 (1862) ; State v. Mc- Donnell, 32 Vt. 491 (1860) ; Bex v. Scully, 1 Car. & P. 319 (1824) ; s.c. 12 Eng. C. L. 190; Reg. v. Archer, 1 F. & P. 351 (1857) ; Langstaffe's Case, 1 Lew. C. C. 162 (1827); 1 Whart. Cr. L. (9th ed.) § 462. Under a statute (Minn. Gen. Stats. § 9) providing that "whoever un- necessarily kills another except by accident or misfortune, and except in cases mentioned in subd. 2 of § 5," &c., " either while resisting an attempt by such other person to commit any felony, or to do any other unlawful act, or after such attempt has failed, sliall be guilty of manslaugliter in the second degree," does not apply where tiie killing is by inflicting blows with an axe on the bead and neck of the deceased, and the accused claims that the blows were given in resisting a civil trespass on his lands and cattle, but makes no pretence tliat the weapon was used without a design to effect the fatal result which followed. State V. Hoyt, 13 Minn. 132 (1868). 158 HOMICIDE. [chap. VI. the killing of the trespasser was caused by his resistance of efforts to eject him, and was unintentional on the part of the slayer, and is accomplished by means not generally calculated to produce death, the homicide is only manslaiighter ; ^ and the same is true if the killing is in the heat of passion, under such circumstances.^ Sec. 150. Homicide in resisting- arrest. — If a person resisting a lawful attempt to arrest him commits a homicide, it will be murder ; if a person resisting an attempt unlaw- fully to arrest him, unnecessarily takes the life of the person so making the attempt, he is guilty of manslaughter, and not of murder, in the absence of proof of express malice.^ And his guilt is of the same degree if he commits tlfe homicide in attempting to escape from such unlawful restraint.* Sec. 151. Same — Attempted arrest by officer without warrant. — Where an officer, knowing of the issuing of a war- rant but not having it in his possession, made an arrest, and being asked for his warrant, said he had one but refused to show it, and at once seized his man and jerked him towards the door, whereupon the man drew and snapped his pistol, ^ See Commonwealth v. Drew, 4 Mass. 391 (1808); 1 Hiile V. C. 473; 1 Hawks. P. C, c. 31, § 42 ; 1 Wliart. Cr. L. (9tli ed.) 462. 2 See Claxton v. State, 2 Humph. (Tenn.) 181 (1840). 3 State V. Oliver, 2 Houst. (Del.) 585 (1855) ; Rafferty v. People, 72 111. 37 (1874); Bias v. State, 7 Blackf. (Ind.) 20 (1843) ; s.c. 39 Am. Dec. 448; Comtnonwealth r. McLaugliliii, 60 Mass. (12 Gush.) 015 (1853) ; Com- monwealth V. Carey, 60 Mass. (12 Gush.) 240 (1853); Gommonwcaltli r. Drew, 4 Mass. 391 (180S) ; IVople r. Burt, 51 Mich. 199 (18S3) ; Drennan V. People, 10 Mich. 109 (1802) ; Jones V. State, 14 Mo. 409 (1851) ; Roberts r. State, 14 Mo. 138 (1851) ; s.c. 55 Am. Dec. 97 ; Drake v. State, 14 Neb. 535 (1883); s.c. 17 N. W. Rep. 117; Po- teete v. State, 9 Raxt. (Tt-nn.) 261 (1878) ; s.c. 40 Am. Rep. 90 ; Peter r. State, 23 Tex. Ai)p. 684 (1887) ; s.c. 5 S. W. Rep. 228; Alford v. State, 8 Tex. App. 545 (1880) ; Goodman v. State, 4 Tex. App. 349 (1879) ; Tiner r. State, 44 Tex. 128 (1875). * Dias V. State, 7 Blackf. (Ind.) 20 (1843) ; s.c. 39 Am. Dec. 448 ; Com- monwealth V. McLaughlin, 06 Mass. (12 Gush.) 615 (1853); Common- wealth V. Carey, 00 Mass. (12 Gush.) 240 (1853) ; Goodman v. State, 4 Tex. App. 349(1879). Breaking and entering a railroad ticket office in the daytime with an intent to steal therefrom, but not actu- ally stealing, is, under Mass. Rev. Stats., c. 126, § 13, only a misde- meanor ; and an arrest by an officer, witliout a warrant for such an offence previously committed, is illegal ; and killing the officer by the person so arrested is not murder, but man- slaughter. Commonwealth v. Carey, 06 Mass. (12 Gush.) 246 (1853). SEC. 153.] MAXSLAUGHTER. 159 the court held that if death had ensued, it would not have been murder.^ A mittimus issued by the clerk of a court for the arrest of one who has been released from custody, upon giving a bond with surety for costs, and upon which bond judgment has been had and execution issued, confers upon the sheriff no right to make the arrest, and if the sheriff is killed in attempt- ing the arrest, the crime is not murder.- Sec. 152. Homicide in inakingr arrest. — While a homi- cide committed by one who was attempting to make an illegal arrest of the person slain may be murder, it can never be of a less degree than manslaughter, even though committed under reasonable apprehension of death, or of great bodily harm.^ Although a homicide by an officer is justifiable when neces- sary to prevent the escape of a person lawfully under arrest for a felony, yet, where the escape might be prevented by other ineans, the killing will be manslaughter. Thus a kill- ing cannot be justified where the officer neglected to use j^roper means to secure the prisoner, and so prevent an attempt to escape^ Sec. 153. Homicide while committing^ an unlaTrfnl act less than felony. — A voluntar}- homicide, without malice, caused or brought about by the commission by the slayer of an unlawful act, less than felon}-, is manslaughter.^ Thus, adultery being only a misdemeanor, under the Texas statute, one Avho, being caught by a husband in adultery with his ^ Drennan i\ People, 10 Mich. 1G9 tlie latter stopped and refused to go (18()2). further, and tried to get away, where- - Poteete v. State, 9 Baxt. (Tenn.) upon tlie policeman struck him over 261 (1878). Tills case is reported in the head with a si.\-shooter pistol. 40 American Reports, p. 90 ; but the There was no evidence that the pris- editor, in his superior wisdom, has oner was assaulting the policeman ; omitted this point and all others, save and it was proved that other persons tlie trite one of dying declarations of were within call, hut that their aid a witness. was not sought by the policeman. Tlie ^ See Peter v. State, 23 Tex. App. court held tiiat, under the circuiii- 68-1 (1887) ; s.c. 5 S. W. Rep. 228. stances, the policeman was not justi- •* Reneau v. State, 2 Lea (Tenn.) fied in striking the blow ; and his 720 (1879); s.c. 31 Am. Rep. 626; conviction for an aggravated assault 2 Am. Cr. Rep. 624. was affirmed. In Skidraore v. State, 2 Tex. App. ^ See State v. Shelledy, 8 Iowa, 477 20 (1878), a policeman was conduct- (1859) ; Reed v. State, 11 Tex. App. ing a prisoner to the calaboose, when 509 (1882) ; s.c. 40 Am. Rep. 795. IGO HOMICIDE. [chap. VI. wife, resists an attack made on him by tlie husband, and kills him to save his own life, is guilty of manslaughter.^ In Reed V. State 2 the court say that, " How far and to what extent he will be excused or excusable in law must depend upon the nature and character of the act he was committing, and which produced the necessity that he must defend himself. When his own original act was in violation of law, then the law takes that fact into consideration in limiting his right of defence and resistance whilst in the perpetration of such unlawful act. If he was engaged in the commission of a felony, and to prevent its commission the party seeing it, or about to be injured thereby, makes a violent assault upon him, calculated to produce death, or serious bodily harm, and in resisting such attack he slays his assailant, the law would impute the original wrong to the homicide, and make it mur- der. But if the original wrong was or would have been a misdemeanor, then the homicide growing out of or occasioned by it, though in self-defence from an assault made upon him, would be manslaughter under the law." The reason of this rule is thought to be that a man cannot avail himself of a necessity Avliich he knowingly and wilfully l)rought on him- self ;3 that is, it will not afford him justification in law.'* Sec. 154. Killing one in an attempt to kill another. — Where one person is killed in an attempt to kill another, the killing of whom would have been manslaughter, the law transfers the degree of guilt and makes the homicide man- slaughter. Thus, where one, in a mutual combat or scufHe, by accident shoots a third person, the offence is manslaughter.^ In Commonwealth v. Flanigan *^ the accused, in a quarrel at an election pool, shot at his antagonist with a pistol l)ut missed him, and in the scuffle which ensued, another barrel was discharged, which killed a boy standing near by. The court held that this was voluntary manslaughter. 1 Reed v. State, 11 Tex. App. 500 * IJced v. State, 11 Tex. App. 509 (1882); s.c. 40 Am. Rep. 705. (1882) ; s.c. 40 Am. Rep. 705, 707. 2 11 Tex. App. 509 (1882) ; s.c. 40 ^ Commonwealtli r. Flanigan, 8 Am. Rep. 795. Pliila. (Pa.) 4;30 (18(50) ; Clark v. 3 State r. Neeley, 20 Iowa, 108 Stato, 10 Tex. App. 405 (1880). (1865) ; Adams v. People, 47 III. 37(5 « 8 I'hila. (Pa.) 430 (1869). (1868) ; State v. Starr, 38 Mo. 270 (1866). SEC. 156.] MANSLAUGHTER. 161 Sec. 155. Homicide in preserving^ peace. — If life be un necessarily taken by a third person interfering between two combatants for the purpose of preserving the peace in pro- tecting one against the other, the offence is manslaughter.^ It is not justifiable to resort to firearms in defence against an attack with the naked fists ; and where one who inter- feres in behalf of a person so attacked, and without intent to kill, discharges a gun by which the assailant is killed, he is guilty of manslaughter.^ Sec. 156. involuntary manslaughter — What constitutes. — Involuntary manslaughter is the unlawful killing of a human being without malice either expressed or implied, and without intent to kill or inflict the injury causing death, committed accidentally in the improper or negligent perform- ance of an act lawful in itself,^ or in the commission of some unlawful act, not felonious, as where an act not strictly unlawful is done in an unlawful manner and without due caution;^ accidentally killing an antagonist by a chance blow,* or a kick,*^ in a fist fight ; accidentally killing an an- tagonist in circumstances where the use of the weapon in defence was not justifiable,® although done in the heat of passion, contrary to expectation, and with an instrument not calculated to produce death ; " accidentally killing by riding 1 People r. Cole, 4 Park. Cr. Cas. slaughter in tlie fourth degree under (N. Y.) 35 (1857). the Wisconsin Revised Statutes, cliap- 2 Brown r. State, 28 Ga. 199 (1859); ter 133, section 20, tlie involuntary Bruner v. State, 58 Ind. 159 (1877) , killing must be without a cruel or un- Slate V. Benham, 23 Iowa, 154 (1867) ; usual weapon, and witliout any cruel B.C. 92 Am. Dec. 417; Chrystal v. or unusual means. Keenan v. State, Commonwealth, 9 Bush (Ky.) 669 8 Wis. 132 (1857). (1873) ; State v. McNab, 20 N. H. 3 Lee v. State, 1 Coldw. (Tenn.) 02 160 (1849); State v. Zellers, 7 N. J. (1860). L. (2 Halst.) 220 (1824) ; People v. ^ Reg. v. Caton, 12 Cox C. C. 024 Rector, 19 Wend. (N. Y.) 569 (1838) ; (1875). Lee V. State, 1 Coldw. (Tenn.) 62 5 Wellar r. People, .30 Mich. 10 (1860) ; Keenan v. State, 8 AVis. 132 (1874) ; s.c. 1 Am. Cr. Rep. 276. (1857); 1 AYhart. Cr. L. (9th ed.) o state v. Benham, 23 Iowa, 154 § 305; Desty Cr. L. § 128 c; 4 Bl. (1867); s.c. 92 Am. Dec. 417. Comm. 192; 1 East P. C. 55 ; Harris' "Commonwealth v. McAfee, 108 . Cr. L. (3d ed.) 170; 1 Hawk. P. C, Mass. 4-58 (1871); Bull v. Common- c. 12, § 1; Roscoe's Cr. Ev. (10th wealth, 14 Gratt. (Va.) 013 (1857). ed.) 724; 1 Russ. Cr. (5th Eng. ed.) See McKinney r. State, 8 Tex. App. 822. 626 (1880) ; 1 East P. C. 235. To reduce the offence to man- 162 HOMICIDE. [chap. VI. an unruly horse into a crowd; ^ accidentally killing by raising a heavy article over a crowded street, when the method taken in raising was not sufficiently guarded and due notice not given ; ^ accidentally killing a person in lawful sports not in themselves dangerous ; ^ accidentally killing a participant in the pursuance of an unlawful sport,^ because in such a case the intention of the parties, in itself, is not innocent, each participant being careless of what hurt may be given to his fellow ; ^ accidentally killing a person not seen, by throw- ing a stone or firing a gun into the street ; '^ accidentally kill- ing by throwing stones or other missiles from the house-top into the street ; '' accidental killing in the unlawful and negligent use of firearms without intent to injure ; ^ acciden- tal killing in shooting at poultry with intention to steal ; ^ as accidental killing in the perpetration of a practical joke, as by ducking,!*^ or building a fire over a drunken man to frighten him,ii or giving an excessive quantity of liquor,^^ shooting a gun to frighten,^'^ or striking a horse to annoy the rider,!* qp throwing stones into a coal-pit in sport,!^ or up- setting a cart, and the like.^^ Sec. 157. Same — How cominitted — By gross careless- ness or neg'lig-eiice. — Any homicide caused by the gross care- 1 Lee v. State, 1 Coldw. (Tenn.) 62 (1800) ; 1 East P. C 231 ; 1 Hale P. C. 475 ; Post. 26.3. 2 Rex V. Rigniaidon, 1 Lew. C. C 180 (1833). 3 Rex V. Murphy, 6 Car. & P. 103 (1833) ; s.c. 25 Eng. C. L. 343; 1 East P. C. 270. 4 Fost. 260. 5 1 East P. C, c. 5, § 42, p. 270. G State V. Vance, 17 Iowa, 1.38 (1864) ; Sparks v. Conimoiiwealtli, 3 Bush (Ky.) HI (18f)7); People i: Fuller, 2 Park. Cr. Cas. (X. Y.) 10 (182.3); 1 East P. C 231. " Rex r. Hull, Kelynge, 40 (1064) ; s.c. 1 Lead. C. C. 50; 1 East P. C. 202; Fost. 262. However, if the building is situated some distance from the street, and proper warning is given hefore the missile is thrown, it will be manslaughter. Rex r. Hull, Kelynge, 40(1604); s.c. 1 Lead.C.C.42. estate v. Vines, 93 N. C. 493 (1885); s.c. 53 Am. Rep. 466; Far- rant i: Barnes, 11 C. B. (N. S.) 553 (1862) ; s.c. 31 L. J. C. P. 137 ; 1 East P. C. 266 ; Fost. 263. 9 See Fost. 258. n 1 East V. C. 236. 11 Reg. V. Errington, 2 Lew. C. C. 217 (1838). 12 Reg. V. Packard, 1 Car. & M. 236, 246 (1841) ; s.c. 41 Eng. C. L. 1.33, 138; Rex v. Martin, 3 Car. & P. 211 (1827) ; s.c. 14 Eng. C. L. 531. See ante, § 2. i-» State V. Roane, 2 Dev. (X. C.) L. 58 (1828). 1+ Piummer's Case, Kelynge, 100 (1702) ; s.c. 12 Mod. 627 ; Fost. 258; 3 (\)-Inst. 56; Kelly, 117; 1 Hawk. P. C, c. 29, § 11; 1 Hawk. P. C, c. 31, § 41. 1- Fenton's Case, 1 Lew. C. C. 179 (18.30). I'' Rex V. Sullivan, 7 Car. & P. 641 (1830) ; s.c. 32 Eng. C. L. 799. SEC. 157.] MANSLAUGHTER. ' 163 lessness or negligence of any person in the discharge of any act or duty, is manslaughter. This carelessness or negligence may consist either in the improper or negligent performance of an act, or in the omission to perform a prescribed duty. But it has been said that : " Omissions are not the basis of penal action, unless they constitute a defect in the discharge of a responsibility with which the defendant is especially invested. There is no such thing, in fact, as an omission that can be treated as an absolute blank. A man who is apparently inactive is actually doing something, even though that somethings is the cancellingf of somethincr else that he ought to have done. Even sleeping is an affirmative act, and may become the object of penal prosecution when it operates to interrupt an act on the part of the defendant which the law requires of him, with the penalty of prosecu- tion for his disobedience. Since, therefore, an omission takes its character from the prior responsibility, such prior responsibility must be scrutinized when we undertake to estimate the penal character of an omission to perform it. As a general rule in this respect we may say, that when a responsibility exclusively imposed on the defendant is such that an omission in its performance is, in the usual course of events, casually followed by an injury to another person, or to the state, then the defendant is indictable for such an omission of duty."' ^ The following instances of gross negligence or omission of duty have been held to support on an indictment for man- slaughter, where causing death, to wit : the omission of officers of a vessel to keep a proper lookout ; ^ the omission of an officer in charge of a coal mine to give it ventilation ; ^ omission by a railway tender to give the proper signal ; * omis- sion by a switch-tender to properly turn a switch ; ^ and 1 Reg. V. Lowe, 3 Car. & K. 123 Reg. v. Lowe, 4 Cox C. C. 449 (1850); (1850) ; s.c. 4 Cox C. C. 449; Reg. s.c. 3 Car. & K. 123; Reg. ;;. Spence, V. Haines, 2 Car. & K. 368 (1847); 1 Cox C. C. 352 (1846). s.c. 61 Eng. C. L. 367 ; Reg. v. Hughes, ^ Reg. v. Haines, 2 Car. & K. 368 Dears. & B. C. C. 248 (1857); s.c. 7 (1847) ; s.c. 61 Eng. C. L. 367. Cox C. C. 301 ; Reg. v. Gray, 4 Fost. * Reg. v. Pargeter, 3 Cox C. C. 191 &F. 1098 (1865). (1848). 2 See Rex v. Green, 7 Car. & P. ^ State v. O'Brien, 32 N. J. L. 156 (1835); s.c. 32 Eng. C. L. 549; (o Vr.) 169 (1867). 164 HOMICIDE. [chap. VI. omission by a street-car conductor to keep proper lookout ahead of the car.^ But a person is not liable to be charged criminally for the omission to perform an act unless the duty and responsibility is upon hira exclusively.^ The following are instances of carelessness or negligence in tlie commission of an act sufficient to support an indictment for manslaughter, when death ensues as the resdlt, to wit : the reckless handling or discharge of fireaims ; ^ gross carelessness or negligence by officers in the management of vessels, or in the commission of acts prescribed by the navigation laws ; * the rash or reck- less administering of medicine or remedies or physical treat- ment causing death, either by a physician or other person;^ rudeness of sport resulting in death ; ^ the use of poor and de- fective materials by a builder, resulting in the fall of the build- ing and the death of an occupant;" and recklessness in driving or controUinsr a hack or other vehicle. Thus in the case of Lee V. State,^ a hack-tb-iver was held to have been properly 1 Commonwealth v. Metropolitan R. Co., 107 Mass. 236 (1871). 2 Reg. V. Barrett, 2 Car. & K. 343 (1846) ; s.o. 61 Eng. C. L. 342; Reg. V. Gray, 4 Fost. & F. 1098 (1865). 3 McPherson v. State, 22 Ga. 487 (1857) ; Spnrks v. Commomuealth, 3 Bush (Ky.) Ill (1867); s.c. 96 Am. Dec. 196; Adams v. State, 65 Ind. 565 (1879) ; State v. Hanlie, 47 Iowa, 647 (1878); s.c. 29 Am. Rep. 496; 2 Am. Cr. Rep. 326; State v. Vance, 17 Iowa, 138 (1864) ; State v. Emeri/, 78 Mo. 77 (1883); s.c. 47 Am. Rep. 92; People V. Fuller, 2 Park. Cr. Cas. (N. Y.) 16 (1823) ; Slate v. I7ne.s-, 93 N. C. 493 (1885) ; s.c. 53 Am. Rep. 466; State v. Roane, 2 Dev. (N. C.) L. 58 (1828) ; Williams v. State, 2 Ohio Circuit Court, 292; Nel- son V. State, 6 Baxt. (Tenn.) 418 (1873) ; Robertson v. State, 2 Lea (Tenn.) 2.39 (1879); s.c. 31 Am. Rep. (!02 ; Farrant v. Barnes, 11 C B. N. S. 553 (1862); s.c. 103 Kng. C. L. 553; 31 L. J. C. P. 137 ; Reg. v. Jones, 12 Cox C. C. 628 (1875) ; 2 Gr. Cr. Rep. 33; Reg. i'. Skeet, 4 Fost. & F. 931 (1866) ; lleg. v. Archer, 1 Fust. & F. 351 (1857) ; Levy v. Langridge, 4 Mees. & W. 337 (1838) ; s.c. 7 L. J. Ex. 387; Reg. v. Martin, L. R. 8 Q. B. Div. 54 (1881); Burton's Case, 1 Str. 481 (1722) ; Whart. Horn. (2d ed.) § 88 et seq.; Desty Cr. L. § 1, 128 c; 1 East P. C. 266; Fost. 256, 263; 1 Hale P. C. 475. * People V. Sheriff, 1 Park. Cr. Cas. (N. Y.) 659 (1852) ; United States v. Taylor, 5 McL. C. C. 242 (1851); United States v. Warner, 4 McL. C. C. 464 (1848); United States v. Keller, 19 Fed. Rep. 633 (1884). ^ Commonwealth v. Thompson, 6 Mass. 1.34 (1809) ; Rice v. State, 8 Mo. 561 (1844) ; State v. Center, 35 Vt. .378 (1862). ^ Pennsylvania r. Lewis, Addis. (Pa.) 279 (1796); Rex v. Murphy, 6 Car. & P. 103 (1833) ; s.c. 25 Eng. C. L. 343; Wliart. Horn. (2d ed.) § 162 ; Desty Cr. L. § 128 c ; 1 East P. C. 270. " People r. Buddensieck, 103 N. Y. 287 (1886); s.c. 57 Am. Rep. 766; s.c. 9 N. E. Rep. 44. « 1 Coldw. (Tenn.) 62 (1860). SEC. 158.] MANSLAUGHTER. 165 convicted of involuntary manslaughter in running over arid killing a little child, the evidence showing that the prisoner " deliberately saw the danger in which the child was placed, and yet drove on at a moderate pace." In the recent case of White v. State,^ upon the trial of an indictment for murder caused by suddenly applying the brake to a hand-car on which deceased, defendant, and others were riding, whereby the car was stop[)ed, and deceased killed, an instruction that, if defendant did not know the result of stopping the car suddenly, although he may have stepped on the brake in jumping off the car, he would not be guilty, is erroneous, as, if he knew that stepping on the brake would stop the car suddenly, and did so intentionally, he might have therefore been guilty of gross carelessness, which, causing death, would be at least manslaughter. Sec. 158. Same — Negligent use of firearms. — At com- mon law it is manslaughter if one discharge^ a gun in the highway in the dark, and kill one whom he did not see ; ^ and where one by the careless use of a 2)istol in sport kills another by accident, it is manslaughter, although the victim told him to shoot.^ When a person learning that some boys were stealing melons belonging to him, rushed out to his melon-patch, and fired a gun, killing one of the depredators, the court held that if the killing was the result of pure accident, and there was no purjiose to injure or aim in the direction of any one, it was excusable ; but if the gun was fired recklessly or heedlessly, the act would be, at least, manslaughter, although the gun was pointed in the direction of the deceased, by accident, with no purpose to injure.^ 1 84 Ala. 421 (1887) ; s.c. 4 So. lie threatened to shoot any one who Rep. 598. interfered with him. In the struggle ■■^ People V. Fuller, 2 Park. Cr. Cas. for the pistol, and while it was in B's (N. Y.) 16 (182o). hands, it was accidentally discharged, 3 State V. Vines, 93 (N. C.) 493 and C was killed. B was guilty of (1885); s.c. 53 Am. Rep. 400. involuntary manslaughter; and as On the trial of A, indicted jointly there could be no aider and abettor in withBforthemurderofC, it appeared such a case, that A was not guilty, that A was called upon by B to assist Adams r. State, 65 Ind. 566 (1879). him and others in taking from C a •* State v. Vance, 17 Iowa, 138 pistol exhibited by him, with which (18G4). 166 HOMICIDE. [chap. VI. In the case of State v. Hardie ^ a revolver was found in the road with one load in it. Six months thereafter repeated attempts failed to discharge it or remove the load. Four years thereafter the defendant endeavoring to frighten a woman with the revolver accidentally discharged it and killed her, and he was rightly convicted of manslaughter. In Williamson v. State,^ where the evidence showed that the person killed came to his death by means of a shot dis- charged from a pistol, intentionally, but without malice, pointed or aimed by the defendant at or towards the deceased, he may properly be convicted of manslaughter, the slayer at the time having been in the commission of an unlawful act, the statute ^ not being intended to cover a case of this kind, but one where the aiming or injury does not produce death. It is thought, however, that the mere negligent handling of firearms is not of itself sufficient. Unless there are circum- stances to render it an assault, one's playful and negligent handling, of a pistol which he believes to be empty, with no intent to harm, will not make the consequent killing volun- tary manslaughter.^ Thus in a case where the defendant, after amusing himself with a small pistol shooting "• Christ- mas guns," loaded it with only a paper wad, approached a friend, asking her to kiss him, and, upon her refusal, said, "■ If you don't kiss me, I will shoot you," put both arms around her, discharged the pistol below her shoulder, and on her falling mortally wounded, exclaimed, " For God's sake, forgive me, Milley ; I didn't think it would hurt you." The court held that the facts did not warrant a conviction of vol- untary manslaughter.^ Sec. 159. Same — Misconduct and neg-lig-ence in steam- boat navig-ation. — On the trial of an indictment for man- slaughter under the federal statute *^ which provides that any act of " misconduct, negligence, or inattention " on the part of persons employed in steamboat navigation, producing death M7 Iowa, (347 (1878); s.c. 29 Am. 2^.0 (1879); s.c. .31 Am. Rep. 602; Rep. 496 ; 2 Am. Cr. Kep. 82(). 3 Am. Cr. Kcp. 207. 2 2 Ohio Circuit Court, 2i)2. '"' Nelson i-. State, 6 Baxt. (Tenn.) 8 Ohio Rev. Stat. § 6822. 418 (1873). ■* Robertson v. State, 2 Lea (Tenn.) « § 12 of Act of Congress, July 7, 1838. SEC. 161.] MANSLAUGHTER. 167 as a result, shall be deemed manslaughter, if it appear that the steamboat of which the defendants had charge came into collision with another vessel, whereb}^ life was lost without fault on tlie part of the defendants, they shall be acquitted.^ But where the officers of a steamboat increase the fires in racing with another boat, to such a degree as to burn the boat, so that death ensued, they will be guilty of manslaughter.^ Sec. 160. Same — By assault. — Where, in the commis- sion of an unlawful assault less than felony, an injury is unintentionally inflicted, and it results in death, the person inflicting it is guilty of involuntary manslaughter.^ Thus where one who, thinking that he has been insulted, brutally pushes or strikes the offender, who falls, striking his head against the pavement, and death results therefrom, the assault- ing party is guilty of involuntary manslaughter.'* In State v. Downs,^ on the trial of an indictment for man- slaughter, the evidence showed that defendant's son, eleven years old, struck deceased in the face, when the latter stepped back and threw up his liands, though not within reach of the boy, and at that moment defendant, without any warning, ste];)ped up behind deceased and struck him on the head with a bottle containing liquor, and weighing from three to five pounds, inflicting injuries from which he soon died, an instruction on manslaughter in the first degree under the statute ^ defining it to be '' the killing of a human being, without the design to effect death by the act, procurement, or culpable negligence of another, while such otlier is engaged in the perpetration or attempt to perpetrate any crime or misdemeanor not amounting to a felony, in case where such killing would be murder at common law," was held to be erroneous. Sec. 161. Same — By attempting abortion. — Unlawfully attempting to produce an abortion upon a female when she is 1 United States v. Warner, 4 McL. s.c. 11 N. E. Rep. 447 ; State v. C. C. 463 (1848). Downs, 91 Mo. 19 (1886). 2 People V. Sheriff, 1 Park. Cr. Cas. * Brown v. State, 110 Ind. 486 (N. Y.) 659 (1852). (1886) ; s.c. 11 N. E. Rep. 447. 3 State V. Johnson, 102 Ind. 247 5 91 Mo. 19 (1886) ; s.c. 3 S. W. (1885) ; s.c. 1 N. E. Rep. 377. See Rep. 219. Brown v. State, 110 Ind. 486 (1886) ; « Mo. Rev. Stat. 1879, § 1238. 168 HOMICIDE. [chap. VI. quick with child, and thereby causing her death, is man- slaugbter.i And this is true even though the attempt to produce the abortion is made by the use of drugs which the defendant procured and gave to his wife, with intent that she should take tliem in order to procure the abortion ; and she took them in his absence and died from their effects.^ But where an infant is born alive and dies by reason of potions adminiitered or bruises received while in the womb, it will be murder in the person who administered the one or gave the other, with a view of causing a miscarriage.^ The offence of administering a drug to a pregnant woman with intent to produce miscarriage, and that of administering it with intent to kill the child, are distinct offences.'* If one administer a drug or use an instrument upon a pregnant woman with intent to destroy the child, this constitutes a felony,^ and if the deatli of the mother occur by reason of the use of such drug or instrument with such intent, the offence will be mur- der.*^ It was laid down by Lord Hale ' nearly two hundred years ago that "• if a woman be with child, and any give her a potion to destroy the child within lier, and she takes it, and it works so strongly that it kills her, this is murder ; for it was not to cure her of a disease, but unlawfully to destroy the child within her ; and therefore, he that gives a potion to 1 Yundtc. People, 05 111. 372 (1872); Smith V. State, :« Me. 48 (1851) ; s.c. 54 Am. Dec. 007 ; State v. Fitzporter, 93 Mo. 390 (1887) ; s.c. S. W. Kep. 223; People v. Clark, 7 N. Y . 385 (1852); State v. Glass, 5 Greg. 73 (1873) ; Commonwealth v. Railing, 113 Pa. St. 37 (1880) ; s.c. 4 Atl. Rep, 59; Reg. v. Gaylor, Dears. & B. C. C. 288 (1857) ; s.c. 40 Eng. L. & Eq. 550. Where the crime charged is man- slaughter, committed by atte7ni)tiiig to produce abortion, evidence that the deceased, prior to the commission of the crime, made an attemj)t upon herself is immaterial, unless such at- tempt contributed to hor death. State V. Glass, 5 Greg. 73 (1873). 2 Reg. 1-. Gaylor, Dears. & R. C. C. 288 (1857) ; s.c. 40 Kng. L. & Eq. 550. See ante, § 26, 3 State V. Moore, 25 Iowa, 131-137 (1808) ; s.c. 95 Am, Dec, 770 ; Abrams V. Foshee, 3 Iowa, 278, 279- (1856); Mitchell V. Commonwealth, 78 Ky. 204 (1879) ; s.c, 39 Am. Rep, 227 ; 10 Cent, L, J, 338; ;iS'w/V/i v. Slate, 33 Me, 54, 55 (1851) ; s,c, 54 Am, Dec, 607 ; State V. Cooper, 22 N, J, L. (2 Zab,) 53-58 (1849); s,c, 51 Am, Dec. 248 ; Evans v. People, 49 N, Y, 88 (1872) ; State V. Slasile, 82 N. C. 053 (1880) ; State r. Dickinson, 41 Wis. 309 (1877) ; 2 Wliart. Cr, L. § 1220 ; 4 Bl. Comm, 201. * •* Lohman v. People, 1 N. Y, 379 (1848; , s.c, 49 Am. Dec. 341, & Smith V. State, 33 Me. 48 (1851) ; s.c, 54 Am, Dec, 007, 6 Smith V. State, 33 Me, 48 (1851), s,c, 54 Am. Dec. 607. See ante, § 5, " 1 Hale P. C, 429, 430. SEU. 163.] MANSLAUGHTER. 1G9 this end must take the hazard, and if it kills the mother, it is murder." ^ Sec. 162. Same — By threats causing- frig-lit. — Man- slaughter may be caused by an act of the person killed, com- mitted in consequence of fear caused by threats or menaces of another ; but the fear must be well g-rounded and reason- able. Thus, in the recent case of Hendrickson v. Common- wealth.- on the trial of an indictment for murder, it appeared tliat during- a light at night between the defendant, who was crippled and lacked the use of one arm, and his wife, the wife knocked the defendant down with a shovel, got on him and choked him ; that he started for his trousers, saying if he had a knife he would cut her throat. The wife thereupon ran out of the house, and next morning was found in the snow frozen to death. The court held that the defendant could not be convicted of manslaughter merely because such violence caused the wife to leave the house for fear of death or srreat bodily harm at his hands, unless such fear was well grounded or reasonable, and the wife's death by freezing was the nat- ural and probable consequence of her so leaving the house. Sec. 163. Same — By undue correction by persons in autliority.3 — Wlien death results from violent, unreason- able, or immoderate correction or punishment administered by parents, masters, and others in like authorit}^ to those under their control, the killing will be manslaughter in the absence of malice.* Thus in the case of State v. Field,^ which was an indictment for murder, the evidence showed that 1 See Montgomery r. State, 80 Iiul. » gee ante, § 27. 388, .312 (1881); State v. Moore, 25 * See State r. Fields, 70 Iowa, 196 Iowa, 128 (18G8) ; s.c. 95 Am. Dec. (1886) ; s.c. 30 N. W. Rep. 480 ; 776; Cominonwectllh V.Parker, 50 Mass. Commonwealth v. Randall, 70 Mass. (9 Mete.) 263 (1845); s.c. 43 Am. (4 Gray) 36 (1855) ; United States y. Dec. 396; People v. Sessions, 58 Mich. Freeman, 4 Mason C. C. 505 (1827) ; 594, 596 (1886) ; s.c. 26 N. W. Rep. United States v. Knowles, 4 Sawy. 291 ; State v. Dickinson, 41 Wis. 209 C. C. 517 (1864) ; Rex v. Ciieeseman, (1877). Also Commonwealth r. Keeper 7 Car. & P. 455 (1836); s.c. 32 Eng. of tlie Prison, 2 Ashm. (Pa.) 227 C. L. 704; Anon. 1 East P. C. 261; (1838) ; Ann r. State, 11 Humph. Rej>-. r. Hopley, 2 Fost. & F. 202 (Tenn.) 159 (1850); Tinckler's Case, (1860). 1 East P. C, c. 5, § 17, p. 230 (1781) ; ■> 70 Iowa, 196 (1886) ; s.c. 30 Fost. 261. N. \V. Rep. 480. 2 85 Ky. 281 (1887) ; s.c. 7 Am. St. Rep. 596 ; 3 S. W. Rep. 166. 170 HOMICIDE. [chap. VI. defendant, a man of peaceable and quiet disposition, stood in relation of a parent to the deceased, an orphan boy about ten years old, who was in the habit of running away from home and was disobedient ; that a method of punishment adopted was to put the boy in a sack with holes in it ; that on a certain day the defendant tied him in a sack and deposited him near the house, and, acquaintances having engaged the defendant in drinking, the boy was permitted to remain in the sack for several hours, and when found was dead. The court held that sucli evidence M^ould not sustain a conviction of murder in the first degree, and, the defendant consenting, the sentence should be reduced to the maximum punishment authorized for the crime of manslaughter. Sec. 164. Same — Upon person under arrest. — Where an officer or other person, in arresting another, recklessly and carelessly shoots him without necessity, he is guilty of man- slaughter.i And it has been held that where an officer with- out warrant arrested a man who was guilty of no offence, and, in preventing an escape, struck and killed him, he was guilty of involuntary manslaughter.^ Sec. 165. Same — By obstructing railroad track. — Where a person places an obstruction upon a railroad track without actual intent to commit injury or to take life, and death results, he is guilty of manslaughter. Thus, where a person placing an obstruction upon a railroad track, with the intention of returning to a station and informing the conduc- tor of an accommodation train thereof, thereby hoping to secure a position on the road as a reward, and, contrary to his expec- tation, an express train comes first, and, though he tries to stop it, an accident ensues and persons are killed, he is guilty of manslaughter.^ 1 York V. Commonwealth, 82 Ky. ^ State v. Brown, 1 Iloust. Cr. Cas. 360 (1884). (Del.) 63'J (1878). 2 O'Connor v. State, 64 Ga. 125 (1879) ; s.c. 37 Am. Rep. 58, CHAPTER VII. DEFENCES TO HOMICIDE. Sec. 166, Homicide to prevent a crime — Self-defence. Sec. 167. Same — Illustrations. Sec. 168. Same — Defence by another. Sec. 169. Same — Reasonable belief in imminent danger. Sec. 170. Same — Grounds for belief of danger. Sec. 171. Same — Words or threats. Sec. 172. Same — Former acts or attempts. Sec. 173. Same — Conspiracy. Sec. 174. Same — Gestures and menaces. Sec. 175. Same — Possession of weapons. Sec. 176. Same — Assault. Sec. 177. Same — Assault in heat of passion. Sec. 178. Same — Provoking assault. Sec. 179. Same — The slayer must be without fault. Sec. 180. Same — The killing must appear to be the last resort for safety. Sec. 181. Same — Duty to retreat. Sec. 182. Same — Right to pursue assailant. Sec. 183. Same — Defence of others. Sec. 184. Same — Defence of property — Of the habitation. Sec. 185. Same — Of other property. Sec. 186. Same — Setting spring guns. Sec. 187. Homicide in making arrest. Sec. 188. Homicide in resisting rescue. Sec. 189. Homicide in resisting arrest. Sec. 190. Killing oflBcer dispersing public meeting — The Anarcliists' Case. Sec. 191. Homicide because reward offered for death. Sec. 192. Homicide in defence of a woman's chastity. Sec. 193. Killing one guilty of adultery with slayer's wife. Sec. 194. Homicide from necessity. Sec. 195. Same — The Mignonette Case; Sec. 196. Homicide from compulsion. Sec. 197. Existence of war. Sec. 198. Homicide by accident and mistake. Sec. 199. Homicide while insane. •Sec. 200. Same — Uncontrollable impulse. Sec. 201. Same — Moral insanity. 171 172 HOMICIDE. . [chap. VII. Sec. 202. Voluntary intoxication as a defence. Sec. 203. Same — Irresistible appetite. Sec. 204. Same — Producing temporary insanity. Sec. 205. Same — Shown as affecting physical capability. Sec. 206, Same — Mental affectation must be permanent. Sec. 207. Same — As an aggravation of offence — Illinois doctrine. Sec. 208. Same — Texas doctrine. Sec. 209. Same — When considered. Sec. 210. Same — Affecting intent and degrees of offence. Sec. 211. Same — Intoxication as a rebuttal of malice. Sec. 212. Same — As disproving criminal intent. Sec. 213. Same — Insanity resulting from intoxication. Sec. 214. Same — Predis[)osition to insanity from intoxication. Sec. 215. Same — Fixed frenzy. Sec. 216. Same — Delirium tremens. Sec. 217. Same — Involuntary intoxication as an excuse for crime. Sec. 218. Somnambulism as a defence. Sec. 166. Homicide to prevent a crime — Self-defence. — A homicide is always excusable where committed in actual or necessary defence of the life or limb, property or habita- tion of the slayer.^ This right is one founded on the law of nature, and is not superseded by the laws of society.^ It is a right based on necessity,'^ and one which every one brings into society and retains in society, except so far as it is cur- tailed by the laws of society ; * but the necessity for the exer- cise of this right can only arise where one manifestly intends and endeavors by violence or surprise to commit a known felony on the person, habitation, or property of another.^ 1 See McManus v. State, 36 Ala. 7,1. J. Marsh. (Ky.) 478 (1832) ; United 293 (1860) ; Monroe v. State, 5 Ga. 85 States v. Holmes, 1 Wall. Jr. C. C. 1 (1848) ; Commonwealth v. Selfridge (1842). (Mass.), 1 Horr. & T. 2 (1806) ; Com- 3 People v. Pool, 27 Cal. 572 (1865). monwealth ;;. Riley, Thacli. C. C. * Gray v. Combs, 7 J. J. Marsii. (Mass.) 471 (1837); Silvus v. State, 22 (Ky.) 478 (1832); Horr. & T. Self Ohio St. 90 (1871) ; s.c. 1 Gr. Cr. Kep. Def. 867. 679; Stewart v. State, 1 Ohio St. 06 & Carroll ;•. State, 23 Ala. 28 (1853) ; ri852); Pond v. People, 8 Midi. 150 Keener r. State, 18 Ga. 194 (1855); <1860) ; Weaver v. State, 24 Ohi(_f St. State v. Collins, 32 Iowa, 36 (1871) ; 584 (1874); Drake r. State, 5 Tex. State r. Kennedy, 20 Iowa, 569 (1866); App. 649 (1879); United States r. State ;■. Thompson, 9 Iowa, 188 (1859) ; Outerbridge, 5 Sawy. C. C. 620 ri8G8). Boiiannon r. Commonwealth, 8 Bush 2 Long V. State, 52 Miss. 23 (187'i) ; (Ky.) 481 (1871) ; Voung r. Common- Isaacs V. State, 25 Tex. 174 (I860); wealth, Bush (Ky.) 312 (1869); United States r. Outerbridge, T) Sawy. C'i>mmnnv'P(tlth v. Srlfridfje (Mass.), C. C. 020 (1868). See Gray v. Combs, Ilorr. & T. 1 (1806) ;' Commonwealth SEC. 166.] DEFENCES TO HOlVnCIDE. 173 The right of self-defence exists against any present unhiwful attack,^ such as an assault made with a deadly weapon,'^ where such assault is made either upon the person or habita- tion of the accused,^ or upon the parent or child, husband or wife, master or servant, brother or sister, of the accused.* In order to justify a homicide on the ground that it was committed in self-defence, it must appear that the defendant, at the time he caused the death of the deceased, was actinor under a re;isonable belief that he Avas in imminent dano-er of death or great bodily harm from the deceased, and that it was necessary for him to strike the fatal blow or to perform such other act causing the death of deceased, in order to avoid the death or great bodily harm which was apparently imminent.* V. Riley, Thacli. C. C. (Mass.) 471 (1837) : Patten v. People, 18 Miuli. 314 (1809); Pond v. People, 8 Mich. 150 (18«0) ; Stofter v. State, 15 Oliio St. 47 (1864); Stewart i-. State, 1 Ohio St. 66 (1852) ; Drake v. State, 5 Tex.App. 649(1870); United States V. Outerbridge, 5 Sawy. C. C. 6-20 (1868); United States r. Wiltberger, 3 Wash. C. C. 515 (1819) ; Hinch- cliffe's Case, 1 Lew. C. C. 161 (1823). 1 Filkins c. People, 69 N. Y. 101 (1877). ' State V. Thompson, 71 Iowa, 503 (1887) ; s.c. 32 N. \V. Pep. 476 ; State V. Kennedy, 7 Nev. 374 (1872). But it has been said, in Filkins i-. People, 69 N. Y. 101 (1877), that a blow given with the liandle of a knife is not an assault with a knife or sharp instrument, within the meaning of tlie statute, any more tlian would an at- tempt to discharge a loaded gun, the touchhole of wliich was plugged, be an offence under the English statute, making it criminal to attempt to dis- charge a loaded gmi at anotlier. See Pex V. Harris, 5 Car. & P. 159 (1831). 3 Roach v. People, 77 111. 25 (1875) ; Pond 7.'. People, 8 Mich. 150 (1860). •» Oliver V. State, 17 Ala. 587 (1850) ; Armistead v. State, 18 Ga. 704 (1855) ; Waybright r. State, 56 Ind. 122 (1877) ; Cheek v. State, 35 Ind. 492 (1871) ; Pond v. People, 8 Mich. 150 (1869) ; Staten v. State, 30 Miss. 619 (1856); Sharp v. State, 19 Ohio, 387 (1850); Connaughty v. State, 1 Wis. 105 (1853). While it is true that a son may repel a forcible attack on his parent, yet if tiie parent be the assailant, he cannot lawfully aid him. Waddell r. State, 1 Tex. App. 720 (1877). ^ Morrison v. State, 84 Ala. 405 (1888); s.c. 4 So. Rep. 402 ; Watson V. State, 82 Ala. 10 (1886); s.c. 2 So. Rep. 455; Finch r. State, 81 Ala. 41 (1886) ; s.c. 1 So. Rep. 565; Baker r. State, 81 Ala. 38 (1886) ; s.c. 1 So. Rep. 127; Jackson v. State, 81 Ala. 33 (1886); s.c. 1 So. Rep. 33; Dolan V. Slate, 81 Ala. 11 (1886); s.c. 1 So. Rep. 707; Tesney i-. State, 77 Ala. 33 (1884) ; Jackson v. State, 77 Ala. 18 (1884); Jones v. State, 76 Ala. 8 (1884) ; HoUey i: State, 75 Ala. 14 (1883) ; De Arman v. State, 71 Ala. 351 (1882) ; Ingram v. State, 67 Ala. 67 (1880); Leonard r. State, 66 Ala. 461 (1880) ; Cross i-. State, 63 Ala. 40 (1879) ; Myers v. State, 02 Ala. 599 (1878) ; Rogers v. State, 62 Ala. 170 (1878) ; Jiif}(jp v. State, 58 Ala. 406 (1877) ; s.c. 29 Am. Rep. 757; Eiland v. State, 52 Ala. 322 (1875) ; Lewis v. State, 51 Ala. 1 (1874); Taylor r. State, 48 Ala. 157 (1872); Murphy r. State, 37 Ala. 142 (1861) ; Dupree v. State, 33 Ala. 174 HOMICIDE. [chap. VII. Sec. 167. Same — Illustrations. — One of tlie strongest cases on this subject is that of State v. Craton.^ In that case the prisoner was in the commission of a great wrong against the marital rights of the deceased, in wliich he persevered and persisted, notwithstanding the remonstrance of the deceased. When the prisoner struck the fatal blow he was in no danger of an attack, and was evidently influenced by a desire to drive the deceased awa}^, that he might carry out his unauthorized possession of deceased's wife, and not by 1 6 Ired. (X. C.) L. 104 (1845). 380 (1859); s.c. 73 Am. Dec. 422; Noles V. State, 26 Ala. 31 (1855) ; s.c. 02 Am. Dee. 711; Harrison v. State, 24 Ala. 67 (1854) ; s.c. 60 Am, Dec. 450; Carroll v. State, 23 Ala. 28 (1853); s.c. 58 Am. Dec. 282; Holmes V. State, 23 Ala. 17 (1853) ; Pritchett V. State, 22 Ala. 39 (1853) ; s.c. 58 Am. Dec. 250; Johnson i-. State, 17 Ala. 618 (1850) ; Pierson l-. State, 12 Ala. 149 (1847) ; Murphy r. State, 1 Ala. Sel. Cas. 48 ; Duncan v. State, 49 Ark. 543 (1887); s.c. 6 S. W. Kep. 104 ; Mize v. State, 36 Ark. 653 (1880) ; Levells i-. State, 32 Ark. 585 (1877) ; Palmore i: State, 29 Ark. 248 (1874) ; McPherson v. State, 29 Ark. 227 (1874) ; Coker v. State, 20 Ark. 53 (1859) ; People r. Gonzales, 71 Cal. 569 (1887) ; s.c. 9 Cr. L. Mag. 807; 12 Pac. Kep. 783; People v. Scott, 69 Cal. 69 (1886) ; s.c. 10 Pac. Kep. 188 ; People v. Kobertson, 67 Cal. 640 (1885) ; s.c. 6 Am. Cr. Kep. 519; s.c. 8 Pac. Kep. 600; People v. Riggings, 65 Cal. 504 (1884) ; s.c. 4 Pac. Kep. 570 ; People v. Bus/i, 65 Cal. 129 (1884); s.c. 5 .\m. Cr. Kep. 459 ; 3 Pac. Kep. 590 ; People r. Wong Ah Teak, 63 Cal. 544 (1883) ; People V. Tamkin,62 Cal. 468 (1882) ; People V. Westlake, 02 Cal. 303 (1882) ; s.c. 4 Cr. L. Mag. 418 ; People r. Cochran, 61 Cal. 548 (1882) ; People v. Her- bert, 61 Cal. 544 (1882) ; People v. Morine, 61 Cal. .367 (1882); People V. Simons, 60 Cal. 72 (1882) ; People V. Perdue, 49 Cal. 425 (1874) ; Peo- ple V. Anderson, 44 Cal. 65 (1872) ; People V. Walsh, 43 Cal. 447 (1872) ; s.c. 1 Gr. Cr. Kep. 487 ; People r. Scoggins, 37 Cal. 670 (1809) ; People V. Williams, 32 Cal. 280 (1867) ; Peo- ple i\ Barry, 31 Cal. 357 (1800) ; Peo- ple V. Campbell, 30 Cal. 312 (1866) ; People i). Batchelder, 27 Cal. 69 (1864) ; s.c. 85 Am. Dec. 231 ; People V. Gatewood, 20 Cal. 147 (1802) ; Peo- ple v. Lamb, 17 Cal. 323 (1801) ; People V. Hurley, 8 Cal. 390 (1857) ; People V. Payne, 8 Cal. 341 (1857) ; People V. Stonecifer, 6 Cal. 405 (1856) ; Morris v. Piatt, 32 Conn. 75 (1864) ; United States v. Knowlton, 3 Dak. 58 (1882); United States V. Leighton, 3 Dak. 29 (1882) ; Gladden v. State, 12 Fla. 562 (1868) ; Simmons v. State, 79 Ga. 696 (1887) ; s.c. 4 S. E. Kep. 894 ; Darby v. State, 79 Ga. 63 (1887) ; s.c. 3 S. E. Rep. 663; Wortham v. State, 77 Ga. 336 (1883); Koberts v. State, 65 Ga. 430 (1880); Brown v. State, 58 Ga. 212 (1877); Stiles r. State, 57 Ga. 183 (1876) ; Thompson v. State, 55 Ga. 47 (1875); Malone v. State, 49 Ga. 210 (1873) ; Koach v. State, 34 Ga. 78 (1864); Evans v. State, 33 Ga. 4 (1861); Lingo v. State, 29 Ga. 470 (1859); Bailey i: State, 26 Ga. 579 (1858); Hinch v. State, 25 Ga. 699 (1858) ; Hawkins v. State, 25 Ga. 209 (1858); Mitchell v. State, 22 Ga. 211 (185^7); Teal v. Slate, 22 Ga. 75 (1857) ; s.c. 68 Am. Dec. 482 ; Keener v. State, 18 Ga. 194 (1855); s.c. 03 Am. Dec. 269; Haynes v. State, 17 Ga. 465 (1855) ; Monroe v. SEC. 167.] DEFENCES TO HOMICIDE. 175 any fear of danger to himself. Notwitlistanding Craton had given Harrison, the deceased, such great provocation, and not- withstanding the insulting surroundings in which the latter was tlien placed, that great jurist, Ruffin, employed the follow- ing language: "The court agree that if Harrison either assaulted or imprisoned Craton unlawfully, it would amount to a legal provocation. The question is, whether that was the case. There Avas no actual assault in this case. There was no attempt to strike. There wa, a mere threat that the deceased State, 5 Ga. 85 (1848) ; Hudgins r. State, 2 Ga. 17o (1847) ; Gilmore v. People, 124 111. 380 (1888); s.c. 15 N. E. Rep. 758; Panton v. People, 114 111. 505 (1885); s.c. 5 Am. Cr. Rep. 425; 2 N. E. Rep. 411; Kinney v. Peo- ple, 108 111. 519 (1884); Cahill v. People, 106 111. 621 (1883); Stein- meyer v. People, 95 111. 383 (1880) ; Davison v. People, 90 111. 221 (1878); Davis V. People, 88 111. 350 (1878) ; Allen V. People, 77 111. 484 (1875); Roach I'. People, 77 111. 25 (1875) ; Lawlor v. People, 74 111. 228 (1874) ; Greschia v. People, 53 111. 295 (1870) ; Murphy v. People, 37 111. 447 (1865) ; Maher v. People, 24 111. 241 (1860); Schnier v. People, 23 111. 17 (1859) ; Hopkinson v. People, 18 111. 264 (1857) ; Campbell i'. People, 16 111. 17 (1854) ; s.c. 61 Am. Dec. 49 ; Story r. State, 99 Ind. 413 (1884); Adams V. State, 65 Ind. 565 (1879) ; Runi/an V. State, 57 Ind. 80 (1877) ; s.c' 26 Am. Rep. 52; 2 Am. Or. Rep. 318; Wall V. State, 51 Ind. 453 (1875); West V. State, 59 Ind. 113 (1877) ; Kingen r. State, 45 Ind. 518 (1874) ; Creek v. State, 24 Ind. 154 (1865) ; De Forest v. State, 21 Ind. 23 (1863) ; Hittner v. State, 19 Ind. 48 (1862) ; State 1-. Thompson, 71 Iowa, 503 (1887) ; s.c. .32 N. W. Rep. 476; State v. Penqo, 70 Iowa, 657 (1886) ; s.c. 8 Cr. L. Mag. 156 ; 28 N. W. Rep. 457 ; State V. Archer, 69 Iowa, 420 (1886) ; s.c. 29 N. W. Rep. 333; State v. Mahan, 68 Iowa, 304 (1886); s.c. 27 N. W. Rep. 249 ; State v. Sterrett, 68 Iowa, 76 (1885) ; s.c. 25 N. W. Rep. 936; State v. Shelton, 64 Iowa, 333 (1884) ; s.c. 20 X. W. Rep. 4-59; State V. Middleham, 62 Iowa, 150 (1883) ; S.c. 17 N. VV. Rep. 446; State v. West- fall, 49 Iowa, 328 (1878); State v. Stanley, 33 Iowa, 526 (1871) ; State v. Collins, 32 Iowa, 36 (1871); State v. Burke, .30 Iowa, 331 (1870); ,SV«/e v. Benham, 23 Iowa, 154 (1867) ; s.c. 92 Am. Dec. 417; State v. Kennedy, 20 Iowa, 372 (1866) ; State r. Neeley, 20 Iowa, 108 (1865) ; State v. Thompson, 9 Iowa, 188 (1859) ; s.c. 74 Am. Dec. 342 ; Tweedy v. State, 5 Iowa, 433 (1857); State v. Rose, 30 Kan. 501 (1883) ; s.c. 1 Pac. Rep. 817 ; State v. Bohan, 19 Kan. 28, 55 (1877) ; State V. Eogers, 18 Kan. 78 (1877) ; s.c. 26 Am. Rep. 754; State v. Potter, 13 Kan. 414 (1874); State v. Home, 9 Kan. 119 (1872) ; s.c. 1 Gr. Cr. Rep. 718; Stanley v. Commonwealth, 86 Ky. 440 (1887) ; s.c. 9 Am. St. Rep. 305; 6 S. W. Rep. 155; Marcum i-. Commonwealth (Ky.), 4 S. W. Rep. 7 (1887) ; Ferris v. Commonwealth (Ky.), 1 S. W. Rep. 729 (1886); Wright I'. Commonwealth, 85 Ky. 123 (1887) ; s.c. 9Cr. L. Mag. 331; 2 S. W. Rep. 904 ; Odor v. Commonwealth, 80 Ky. 32 (1882) ; Minton v. Com- monwealth, 79 Ky. 4(il (1881); Fain r. Commonwealth, 78 Ky. 183 (1879) ; s.c. 39 Am. Rep. 213; Law. Insan. 772; Parsons v. Commonwealth, 78 Ky. 102 (1879) ; Farris v. Common- wealth, 14 Bush (Ky.) 362 (1878) ; Kennedy v. Commonwealth, 14 Bush (Ky.) 340 (1878) ; Terrell v. Com- monwealth, 13 Bush (Ky.) 246 (1877) ; Lubj^ I'. Commonwealth, 12 Bush (Ky.) 1 (1876) ; Holloway v. Com- 176 HOMICIDE. [chap VII. would kill the prisoner, if he did not give up the other's wife, and accompanying the threat, the deceased drew his knife. But he made no attempt to use it, unless it be that he raised his hand with the knife drawn as the prisoner approached him. But if he did so, that would not be an unlawful assault; for as the prisoner got from his horse, monwealth, 11 Bush (Ivy.) 344 (1875) ; Coffniiin r. Coiniiionvvealth, 10 Bush (Ky.) 495 (1874) ; s.c. 1 Am. Cr. Rep. 293 ; Bohannon v. Common- wealth, 8 Busli (Ky.) 481 (1871); s.c. 8 Am. Hep. 474 ; 1 Gr. Cr. Rep. 613 ; Carico v. Commonwealth, 7 Bush (Ky.) 124 (1870) ; Young r. Com- monwealth, 6 Bush (Ky.)312 (1809); Philips V. Conuiioniveiilth, 2 Duv. (Ky.) 328 (1805); s.c. 87 Am. Dec. 499; Payne v. Commonwealth, 1 Met. (Ky.) 370 (1858) ; Meridith ?■. Common- wealth, 18 B. Mon. (Ky.) 49 (1857) ; Rapp V. Commonwealth, 14 B. Mon. (Ky.) 614 (1854) ; State v. Garlc, 35 La. An. 970 (1883) ; State i-. St. Geme, 31 La. An. 302 (1879) ; State v. Swift, 14 La. An. 839 (1859) ; State v. Mul- len, 14 La. An. 577 (1859) ; Common- wealth V. White, 110 Mass. 407 (1872) ; Commonwealth v. Riley, Thach. C. C. (Mass.) 471 (1837); Com- monwealth V. Selfridge, 1 Horn & T. (Mass.) 2 (1806) ; Brownell v. People, 38 Mich. 732 (1878); People 7'. Lilly, 38 Mich. 270 (1878); People V. Coughlin, 67 Mich. 466 (1887); s.c. 35 N. W. Rep. 72 ; People v. Cook, 39 Mich. 236 (1878) ; s.c. 33 Am. Rep. 380; Hurd v. People, 25 Mich. 405 (1872); Patten v. People, 18 Mich. 314 (1869) ; s.c. 100 Am. Dec. 173 ; Pond y. People, 8 Mich. 150 (1860); People I'. Doe, 1 Mich. 457 (1850) ; State V. Rheams, 34 Minn. 18 (1885) ; s.c. 24 N. W. Rep. 302 ; Slate v. Ship- pen, 10 Minn. 223 (1865) ; s.c. 88 Am. Dec. 70; Ex parte Hamilton, 65 Miss. 147 (1887); s.c. 3 So. Rep. 241; Lamar v. State, 64 Miss. 428 (1886); s.c. 1 So. Rep. 354; Hall v. State (Miss.) 1 So. Rep. 351 (1887); Guice V. State, 60 Miss. 714 (1883) ; Bang V. State, 60 Miss. 571 (1882) ; Scott v. State, 56 Miss. 287 (1879) ; Kendrick V. State, 55 Miss. 436 (1877) ; Parker V. State, 55 Miss. 414 (1877) ; Forten- berry y. State, 55 Miss. 403 (1877); Long V. State, 52 Miss. 23 (1876) ; Edwards v. State, 47 Miss. 581 (1873) ; Wesley v. State, 37 Miss. 327 (1859) ; s.c. 75 Am. Dec. 63 ; Cotton i'. State, 31 Miss. 504 (1856) ; Staten v. State, 30 Miss. 619 (1856) ; Green v. State, 28 Miss. 687 (1855) ; Dyson v. State, 26 Miss. 362 (1853) ; State v. Hardy, 95 Mo. 455 (1888) ; s.c. 8 S. W. Rep. 416 ; State v. Davidson, 95 Mo, 155 (1888) ; s.c. 8 S. W. Rep. 413; State V. Rose, 92 Mo. 201 (1887) ; s.c. 4 S. W. Rep. 733 ; State v. Downs, 91 Mo. 19 (1886) ; s.c. 3 S. W. Rep. 219; Nichols V. Winfrey, 90 Mo. 403 (1886) ; 2 S. W. Rep. 305 ; State v. Elliott, 90 Mo. 350 (1886) ; s.c. 2 S. W. Rep. 411 ; State v. Rider, 90 Mo. 54 (1886) ; s.c. 1 S. W. Rep. 825 ; State v. Peak, 85 Mo. 190 (1884) ; State v. Johnson, 76 Mo. 121 (1882) ; State v. Eaton, 75 Mo. 586 (1882) ; State v. Harris, 73 Mo. 287 (1880) ; State v. Edwards, 70 Mo. 480 (1879) ; State v. Brown, 64 Mo. 367 (1877) ; State v. Stockton, 61 Mo. 382 (1875) ; State v. Hudson, 59 Mo. 135 (1875) ; State v. Under- wood, 57 Mo. 40 (1874) ; s.c. 1 Am. Cr. Rep. 251 ; State v. Linney, 52 Mo. 40 (1873); s.c. 1 Gr. ^r. Rep. 753; State V. Keenc, 50 Mo. 357 (1872) ; State V. Sloan, 47 Mo. 604 (1871); State i". Starr, 38 Mo. 270 (1866) ; State V. O'Connor, 31 Mo. 389 (1861) ; State 1-. Hicks, 27 Mo. 588 (1859) ; Parrish V. State, 14 Neb. 60 (1883) ; s.c. 15 N. W. Rep. 357 ; State v. Smith, 10 Nev. 106 (1875) ; State v. Wells, 1 N. J. L. (Co.xc) 424 (1790); .s.c. 1 Am. Dec. 211 ; Territory v. Baker (N. Mex.), 13 Pac, Rep. 'sO (1887) ; SEC. 167.] DEFENCES TO HOMICIDE. 177 stripped himself, and declared that he would beat the deceased, if he did not leave him in possession of his wife, and then went at defendant for the purpose of beating him, with an instrument, apparently, from its size, sufficient to give a heavy blow, and with the instrument raised, and the deceased still sat on his horse and did not move from his place, an attempt, People V. Sullivan, 7 X. Y. 390 (1852) ; Shorter v. People, 2 N. Y. 193 (1849) ; I'eople r. Liiiub, 54 Barb. (N. Y.) 342 (1865); s.c. 2 Keyes (N. Y.) 8(30; Patterson v. People, 46 Barb. (N. Y.) 625 (1866) ; People r. Shorter, 4 Barb. (N. Y.) 460 (1848) ; People i: Harper, 1 Edm. (N. Y.) Sel. Gas. 180 (1845) ; People V. McLeod, 1 Hill (N. Y.) 377 (1841) ; s.c. 37 Am. Dec. 328 ; Uhl i-. People, 5 Park. Cr. Gas. (X. Y.) 410 (1863) ; Pfomer v. People, 4 Park. Gr. Gas. (N. Y.) 558 (1860); People ?;. Tannan, 4 Park. Gr. Gas. (X. Y.) 514 (1860) ; People r. Gole, 4 Park. Cr. Gas. (N. Y.) 35 (1857) ; People v. Austin, 1 Park. Cr. Gas. (X. Y.) 154 (1847) ; State r. Brittain, 89 N. G. 481 (1883); State v. Matthews, 78 N. G. 532 (1878) ; State v. Harman. 78 N. G. 515 (1878) ; State i-. Dixon, 75 N. G. 275 (1876) ; State r. Merrill, 2 Dev. (X. G.) L. 269 (1829) ; State V. lloane, 2 Dev. (X. G.) L. 58 (1828) ; State V. Hill, 4 Dev. & B. (N. G.) L. 491 (1839) ; s.c. 34 Am. Dec. 396 ; State V. Kutherford, 1 Hawks (X. C.) L. 457 (1821) ; s.c. 9 Am. Dec. 058 ; State V. Craton, 6 Ired. (N. G.) L. 104 (1845) ; State v. Ingold, 4 Jones (X. G.) L. 216 (1856) ; s.c. 67 Am. Dec. 283 ; State r. Harris, 1 Jones (X. G.) L. 190 (1853) ; State v. Med- lin, 1 Winst. (N. G.) L. 99 (1864) ; Darling v. Williams, 35 Ohio St. 58 (1878) ; Erinn v. State, 29 Ohio St. 186 (1876) ; s.c. 23 Am. Rep. 733 ; Stoffer V. State, 15 Ohio St. 47 (1864) ; s.c. 80 Am. Dec. 477 ; Stewart v. State, 1 Ohio St. 66 (1852) ; Goodall v. State, I Oreg. 333 (1861) ; s.c. 80 Am. Dec. 390 ; Pistorius v. Commonwealth, 84 Pa. St. 158 (1877) ; s.c. 2 Am. Gr. Kep. 284 ; Murray v. Commonwealtli, 79 Pa. St. 311 (1875) ; Commonwealth 12 V. Drum, 58 Pa. St. 9 (1868) ; Logue V. Commonwealth, 38 Pa. St. 265 (1861); s.c. 80 Am. Dec. 481; Common- wealth V. Carey, 2 Brewst. (Pa.) 404 (1870) ; Commonwealth v. Crawford, 8 Phila. (Pa.) 490 (1870); State v. Jones, 29 S. G. 201 (1888) ; s.c. 7 S. E. Rep. 290; 11 Gr. L. Mag. 04; State V. Jacobs, 28 S. G. 29 (1887); s.c. 4 S. E. Rep. 799; State v. Beck- ham, 24 S. G. 283 (1885) ; Jackson v. State, Baxt. (Tenn.) 452 (1873); Rippy V. State, 2 Head (Tenn.) 217 (1858) ; Williams v. State, 3 Heisk. (Tenn.) 370 (1872); s.c. 1 Gr. Gr.. Rep. 255; Young v. State, 11 Humplu (Tenn.) 200 (1850) ; Copeland v. State. 7 Humph. (Tenn.) 479 (1840) ; arain^ ger v. State, 5 Yerg. (Tenn.) 459 (1830); s.c. 26 Am. Dec. 278; Gille- land v. State, 44 Tex. 356 (1875); James r. State, 44 Tex. 314 (1875); Tiner v. State, 44 Tex. 128 (1875); Horbach v. State, 43 Tex. 242 (1875) ; s.c. 1 Am. Gr. Rep. 330 ; Irwin v. State, 43 Tex. 230 (1875); Agitone v. State, 41 Tex. 501 (1874) ; Myers v. State, 33 Tex. 525 (1870); Parker v. State, 31 Tex. 132 (1868) ; Johnson v. State, 27 Tex. 758 (1865) ; Stockton v. State, 25 Tex. 772 (1800); Isaacs r. State, 25 Tex. 174 (1800); Hinton v. State, 24 Tex. 454 (1859) ; Wall v. State, 18 Tex. 082 (1857) ; s.c. 70 Am. Dec. 302; Lander v. State, 12 Tex. 462 (1854) ; Bean v. State, 25 Tex. App. 340 (1888) ; s.c. 5 Am. Cr. Rep. 477; 8 S. W. Rep. 278 ; Alexander v. State, 25 Tex. App, 200 (1888) ; s.c. 8 Am. St. Rep. 438; 7 S. W. Rep. 867 ; Bon- nard I'. State, 25 Tex. App. 173 (1888); s.c. 8 Am. St. Rep. 431 ; 7 S. W. Rep. 862; Lynch v. State, 2t Tex. App. 350 (1888); s.c. 5 Am. St. Rep. 888; S. W. Rep. 190 ; Tillery v. State, 24 178 HOMICIDE. [chap. VII. if made by the deceased, to strike under those circumstances, and supposing the deceased was not wrong in stopping the prisoner from carrying away his wife, would have been justi- fiable in self-defence. The prisoner was in the act of making the first assault, and that, probably, of a grievous kind, and the deceased would have had a right to prevent him if he could." 1 The supreme court of Arkansas say in the recent case of Dnncan v. State,^ that: "No person in resisting an assault made upon him in the course of a sudden brawl or quarrel, 1 See Judge v. State, 58 Ala. 406 (1877) ; s.c. 29 Am. Rep. 757. 2 49 Ark. 543 (1887) ; s.c. S. W. Uep. 104. Tex. App. 251 (1888) ; s.c. 5 Am. St. Kep. 883; 5 S. W. Rep. 842; Allen v. State, 24 Tex. App. 216 (1888) ; s.c. 6 S. VV. Rep. 187 ; Wliite v. State, 23 Tex. App. 154 (1887) ; s.c. 3 S. W. Rep. 710; Spearman v. State, 23 Tex. App. 224 (1887) ; s.c. 4 S. W. Rep. 586 ; May i-. State, 23 Tex. App. 146 (1887) ; s.c. 4 S. W. Rep. 591 ; Wil- liams V. State, 22 Tex. App. 497 (1887) ; s.c. 4 S. W. Rep. 64; Orman V. State, 22 Tex. App. 604 (1887); s.c. 58 Am. Rep. 662; 3 S. W. Rep. 468; Patillo v. State, 22 Tex. App. 586 (1887) ; s.c. 3 S. W. Rep. 766; Roach v. State, 21 Tex. App. 249 (1887) ; Tliuston v. State, 21 Tex. App. 245 (1887) ; Hunnicutt v. State, 20 Tex. App. 632 (1886) ; Bell v. State, 20 Tex. App. 445 (1886); Penland v. State, 19 Tex. App. 365 (1886) ; Arto v.. State, 19 Tex. App. 126 (1886) ; Parker v. State, 18 Tex. App. 72 (il885) ; Bell ;;. State, 17 Tex. App. 538 (1875); Risby v. State, 17 Tex. App. 517 (1875) ; Smith (.-. State, 15 Tex. App. 338 (1884); Branch v. State, 15 Tex. App. 96 (1884) ; Cart- wright V. State, 14 Tex. App. 486 (1884); King r. State, 13 Tex. App. 277 (1883); Jordan v. State, 11 Tex. App. 435 (1882) ; Foster v. State, 11 Tex. App. 105 (1882) ; Sims v. State, 9 Tex. App. 586 (1881) ; Holt v. State, 9 Tex. App. 571 (1881); Ken.lall r. State, 8 Tex. App. 569 (1880) ; Babh V. State, 8 Tex. App. 173 (1880); Pharr v. State, 7 Tex. App. 472 (1880) ; Richardson v. State, 7 Tex. App. 486 (1880) ; Marnoch v. State, 7 Tex. App. 269 (1880) ; Hudson v. State, 6 Tex. App. 565 (1879) ; s.c. 32 Am. Rep. 593; Bode v. State, 6 Tex. App. 424 (1879); May v. State, 6 Tex. App. 191 (1879) ; Peck r. State, 5 Tex. App. 611 (1879) ; Edwards v. State, 5 Tex. App. 593 (1879) ; Blake V. State, 3 Tex. App. 149 (1878) ; Wasson v. State, 3 Tex. App. 481 (1878) ; Lister v. State, 3 Tex. App. 17 (1878) ; Williams v. State, 2 Tex. App. 271 (1878) ; West r. State, 2 Tex. App. 460 (1878) ; Plasters v. State, 1 Tex. App. 673 (1877) ; Stevens V. State, 1 Tex. App. 591 (1877) ; Hon- esty V. Commonwealth, 81 Va. 283 (1886) ; Stoneman v. Commonwealth, 25 Gratt. (Va.) 887 (1874); Vaideii V. Commonwealth, 12 Gratt. (Va.) 717 (1855) ; State v. Greer, 22 W. Va. 800 (1883) ; State v. Cain, 20 W. Va. 679 (1882) ; State i: Abbott, 8 W. Va. 741 (1875) ; Clifford r. State, 58 Wis. 477 (1883); s.c. 9 N. W. Rep. 389; State V. Ufarfii), 30 Wis. 216 (1872) ; s.c. 11 Am. Rep. 567; United States V. Mingo, 2 Curt. C. C. 1 (1854); United States v. Outerbridge, 5 Sawy. C. C. 620 (1868) ; United States V. Willberger, 3 W;ish. C. C. 515 (1819) ; United StMtes r. King, 34 Fed. Rep. 302 (1888). SEC. 167.] DEFENCES TO HOMICIDE. 179 or upon a .sudden rencounter, or in a combat on a sudden quar- rel, or from anger suddenly aroused at the time it is made, is justified or excused in taking the life of the assailant, unless he is so endangered by such assault as to make it necessary to kill the assailant to save his own life, or to prevent a great bodily injury, and he employed all the means in his power, consistent with his safety, to avoid the danger, and avert the necessity of killing. The danger must, apparentl3% be 'imminent, irremediable, and actual,' and he must exhaust all the means within his power, consistent with his safety, to protect himself, and the killing must be necessary to avoid the danger. If, however, the assault is so fierce as to make it, apparently, as dangerous for him to retreat as to stand, it is not his duty to retreat, but he may stand his ground, and, if necessary to save his own life, or prevent a great bodily injur}', slay his assailant." ^ The supreme court of California say in the case of People V. Robertson : ^ '^ If a person is assaulted by another, with whom he engages in a combat, he must really and in good faith endeavor to decline any further struggle before taking the life of his assailant. According to the common law it is the duty of a person assaulted to give way ' as far as the fierceness of the assault will permit him.' ^ But if the assault be so fierce as not to allow him to yield a step without manifest danger of his life, or great bodily harm, then, in his defence, he may kill his assailant instantly ; and this, says Blackstone, ' is the doctrine of universal justice as well as of the municipal law.'"* Upon that principle are founded the provisions of the California Penal Code on the same subject. Section one lunidred and ninety-seven of the code in effect declares that if a person is assaulted in such a way as to give him ground, as a reasonably prudent man, in the condition in which the as.sault places him, to apprehend a design on the part of the assailant to commit a felony upon him, or to 1 See Dolan r. State, 40 .\rk. 459 Comni. 180-185; 1 East P. C. 279, § (1883); Fitzpatrick r. State, 37 Ark. 50; Fost. 273; 1 Hawk. P. C. 87, §§ 252 (1881); Harris r. State, 3« Ark. 18-18. 127 (1880); Levells v. State, 32 Ark. -(57 Cal. G46 (1885); s.c. 6 Am. 589 (1877) ; McPherson v. State, 29 Cr. Rep. 519. Ark. 231, 233-235 (1874) ; Palmore '^ 1 Hale P. C. 483. V. State, 29 Ark. 2G7 (1874) ; 4 Bl. ■» 4 Bl. Comm. p. 185. 180 HOMICIDE. [chap. VII. do him some great bodily harm, he has the right instantly to defend himself, and, if necessary, to prevent such real or apparent danger to his person, to kill his assailant. Real or apparent danger, or danger imminent and immediate to life or limb, is therefore a sufficient condition in which to exer- cise the right of self-defence. No withdi-awal or retreat is required. So assailed, a person has a riglit to stand his ground, and, if necessary in defence of himself, slay his assailant. But necessity, real or apparent, for taking human life, arising out of the circumstances in which the homicide is committed, must exist, and the person himself must be without fault. ' The weight of authority,' says the supreme court of Indiana, ' establislies the doctrine that when a per- son, being without fault and in a place where he has a right to be, is violently assaulted, lie may, without retreating, repel force by force ; and if, in the reasonable exercise of his right of self-defence, his assailant is killed, he is justifiable.' ^ " In this case, according to the evidence, the defendant was not conducting himself lawfully. He should have left the store Avhen he was told to go. He had no right to remain and abuse the person in charge of the same, with opprobrious epithets and threats to kill. Being where he had no right to be, and doing what he had no right to do, he was not without fault when Davis assailed him in order to compel him to go away. Nor did the nature of the assault upon him endanger his life or limb. There was no time, from the commencement of the affray to the time of the stabbing, when he could not have withdrawn without danger. That being so, the neces- sity for taking the life of his assailant did not exist, except by his own creation ; for when he got uj) from the porch where he had fallen, he could hive gone away out of danger ; but he turned upon Davis, and, engaging him in a struggle over the stick with which Davis had been prodding him, forced him inside the store and killed him. When a killing takes place under such circumstances, it is true, as matter of law, that the slayer should, really and in good faith, have endeavored to decline any further struggle before the homi- cide was committed." 1 See Kunyan i'. State, 57 Ind. 84 (1877). SEC. 167.] DEFENCES TO HOMICIDE. 181 The same court say in the case of People v. Westlake,^ that : ''Justification for a homicide, according to the California Penal Code, must rest upon two things: (1) a reasonable cause ; (2) an actual apprehension of a design to commit a felony or to do some great bodily injury. Both must exist, or neither will avail. To constitute the defence, the apprehen- sion of danger must be founded on sufficient circumstances, real or aj^parent, to authorize the opinion that the felonious design then exists; previous threats or menacing conduct constitute part of such circumstances. And the circum- stances must not only be such as authorize the fear of death or great bodily harm, but the fear caused by them must be actual, — really entertained, — and the homicidal act must have been done under the controlling influence of that fear, or, in other words, under the honest and well-founded belief that it was absolutely necessary to kill at that moment to save from the imminent danger that menaced life or limb. Can such a belief arise out of the circumstances of necessity or danger which a party has, intentionally or by his own fault, brought upon himself? We think not. Hence w^e see no error in the following instruction upon the subject of justifi- cation, to which the defendant took exceptions: 'If you believe beyond a reasonable doubt, from the evidence, that the defendant killed the deceased, then to render said killing justifiable, it must appear that the defendant was wholly without fault imputable to him by law in bringing about or commencing the difficulty in which the mortal wound was given.' " The instruction is taken literally from the decision of the late supreme court in People v. Lamb,^ which has been since followed and approved by the California court in People v. Simons.3 The doctrine enunciated in those cases seems to have been questioned ; but it was not questioned by a majority of the judges who concurred in that decision ; and the case is not entitled to be considered as an authoritative one over- ruling the former cases. And those cases, we think, should not be overruled, for, as a proposition in criminal law, the 1 62 Cal. .303 (1882) ; s.c. 4 Cr. L. ^ 60 Cal. 72 (1882) ; s.c. 8 Pac. C. Mag. 418. L.J. 1127. 2 17 Cal. 323 (1861). 182 HOMICIDE. [chap. VII. doctrine enunciated b}' them rests upon reason and authority. As has been already said, the apprehension of danger to life or limb which justified a man for taking the life of another, must be an honest one, — one that is well grounded, — and must arise out of a reasonable cause ; but a cause which originates in the fault of the person himself — in a quarrel which he has provoked or in a danger which he has volunta- rily brought upon himself, by his own misconduct — cannot be considered reasonable or sufficient in law to support a well-grounded apprehension of imminent danger to his person. Error of apprehension the law overlooks when a man is called upon to act on appearances ; but it does not overlook dis- honesty of apprehension. Hence a real or apparent necessity brought about by the design, contrivance, or fault of the defendant, cannot be availed of as a defence for the commis- sion of a crime. ^ ''Yet it is not to be doubted that a person accused of crime may show in justification that, although he brought upon himself an imminent dang-er, he, in the presence of that necessity, changed his mind and conduct, and honestly endeavored to escape from it, but could not without striking the mortal blow. But tliat is not the present case. And in the absence of such circumstances it must be true as a legal proposition, that where a defendant seeks and brings upon himself a difficulty with the deceased, in which he willingly continues until he involves himself in the necessity to kill, the law will not hold him guiltless. The right of self-defence, which justifies a homicide, does not include the right of attack." The Kansas court say, in the case of State v. Rogers r^ "We do not hold that when one person, with no felonious intent, but simply for the purpose of inflicting a [)ersonal chastise- ment, strikes another Avith his hand, he has absolutely forfeited all right to exist, as the able counsel for the ai)[)ellant sug- gests must be the result, if this instruction be held not good 1 See Eiltiml v. State, 52 Ala. 322 7G2 (1870); Kippy v. State, 2 Head (1875); Koach v. State, 34 Ga. 78 (Tenii.) 217 (1858). (1884) ; Gainey i-. People, !)7 111. MS Kan. 78 (1877); s.c. 20 Am. 271 (1881) ; State v. Neeley, 20 Iowa, Hep. 754. 109 (1805) ; Evans i-. State, 44 Miss. SEC. 167. J DEFENCES TO HOMICIDE. 183 law. In discussing the question of self-defence, Lord Hale says: 'Supposing that A by malice makes a sudden assault upon B, who strikes again, and pursuing hard upon A, A retreats to the wall, and in saving his own life kills li ; some liave held this to be murder, and not se defendo, because A gave the first assault. But Mr. Dalton thinketh it to be se defendo, though A made the first assault, either with or without malice, and then retreated. It seems to me that if A did retreat to the wall upon a real intent to save his life, and then merely in his own defence killed B, that it is se defendo. But if, on the other side. A, knowing his advan- tage of strength, or skill, or weaj)on, retreated to the wall merely as a design to protect himself under the shelter of the law, but really intending to kill B, then it is murder, or manslaughter, as the circumstances of the case require.' ^ Again, he says : ' If A assaults B first, and upon that assault B re-assaults A, and that so fiercely that A cannot retreat to the wall or other non ultra without danger to his life; nay, though A fall upon the ground upon the assault of B, and then kills B, this shall not be interpreted to be se defendo^ but to be murder, or simple homicide, according to the cir- cumstances of the case ; for otherwise we should have all cases of murders or manslaughters by the way of interpreta- tions turned into se defendo.'' '^ " The authorities uniformly hold that the person who first commences a malicious assault, then continues to advance as tlie assailed retreats, or does not in good faith attempt, so far as he can, to withdraw from the combat, and abandon the conflict, cannot justify taking the life of his adversary, however it may be to save his own, and must be deemed to have brought upon himself the necessity of killing his fellow- man. We see no reason from the authorities cited by counsel, or the argument presented in behalf of the appellant, in any way, to loosen these well-settled principles so salutary to prevent altercations, and to save human life. The mere striking of one person by another, with the intention to commit only a personal chastisement, is almost sure to be followed by a dangerous, if not deadly result, where the 1 1 Hale p. C. 479, 480. 2 \ Hale P. C. 482. 184 HOMICIDE. [chap. VII. parties are armed with deadly weapons, as in this case ; and while the carrying of the pistol loaded for use cannot be too severely censured, too strongly condemned, it is unfortunately a too prevalent custom to be wholly ignored, 6r to suppose that an encounter between two persons hostile to each other will not result, after a blow is given. by the first, in a combat with fists. The blow from the one is often followed by the pistol-shot from the other. The assailant places himself in peril when he makes the assault ; and when he is in fault, and calls down upon himself the vengeance of the assailed, he cannot be justified under the law when he has not actually ' put into exercise the duty of withdrawing from the place.' " Regarding the duty to retreat, the supreme court of Iowa say, in the early case of State v. Thompson, ^ that : " It has been held by this court that a party is not compelled to flee from his adversary, who assails him with a deadly weapon, and retreat to the wall before he can justify the homicide.^ The assault may be so fierce as not to allow the party assailed to yield a step without manifest danger of his life or of enormous bodily harm. In such cases, if there be no other way of saving his own life, he may, in self-defence, kill his assailant, and the killing will be justifiable. But when the attack is not felonious, the rule of law is different. If it is not apparent from the manner of the assault, the nature of the weapon used, and the like, that the assailant intended to commit a felony, that the danger was imminent, and that the species of resistance used was necessary to avert it, the party assailed is not justified in resorting to the use of a deadly weapon and using it in a deadly manner.^ " In Tennessee it has l)een held that if a man, though in no danger of serious bodily harm, through fear, alarm, or cowardice, kill another under the impression that great bodily injury is about to be inflicted on him, it is neither murder nor manslaughter, but self-defence.* ' This,' says Bronson, J., in Shorter v. People,^ ' was going too far. It is not enough 1 9 Iowa, 188 (1859) ; s.c. 74 Am. ^ gee Orninjier v. State, 5 Yerg. Pec. 342. (Teiiii.) 451) (1830) ; s.c. 20 Am. Dec. 2 See Tweedy v. State, 5 la. 433 278. (1857). 5 2 N. Y. 197 (1849) ; s.c. 51 Am. •' See United States i-. Wiltberger, Dec. 280. 3 Wash. C. C. 521 (1819). SEC. 168.] DEFENCES TO HOMICIDE. 185 that the party believed himself in danger, unless the facts and circumstances were such that the jury can say that he had reasonable grounds for his belief.' " Sec. 168. Same — Defence by another. — It is well estab- lished that what one may do in his own defence, another may do for him, if he believes life is in immediate danger, or if such danger and necessity be reasonably apparent, provided the party in whose defence he acts was not in fault. , The Kentucky court say, in the recent case of Stanley v. Common- wealth,! ^i^at " courts were slow to adopt this doctrine in its full extent, doubtless for fear that it might be abused, and sometimes serve as a shelter to those who, under the plea of protecting the lives of others, merely executed their own o-uilty purposes. It was, however, declared by this court in the unpublished opinions in the cases of Roberts v. Conmion- wealth and Smith v. Commonwealth, and is not open to this objection when properly applied." The right of self-defence rests upon necessity, and appar- ent reasonable necessity is the Avhole law and reason of it. It was not derived from society. It is a natural right, in- stinctive in the person. Man, Avhen he came into society, brouo-ht it with him in all its freedom and broadest sense. It has been restricted by law in its exercise to cases of necessity, but cannot be altogether denied. If it were possible it should not be, because, as now restricted, it serves to protect right against wrong in emergencies where the law would not avail.^ And it is the duty of a man who sees a felony attempted by violence to prevent it if possible. This is an active duty, and hence he has a legal right to use the means necessary to make the resistance effectual. If A be unlawfully assaulted by B, and his life thereby endangered, he may, by reason of not being in fault, defend it even to the extent of taking the life of the person who is in fault ; and as the right is a natu- ral one, rules of law restricting it must, in order that it may still be effective, be adapted to his character and nature. He may, therefore, act upon appearances, if he acts reason- ably ; and if assailed by another, and he believes, and has 1 86 Kv. 440 (1887) ; s.c. 9 Am. 2 Stanley v. Connnonwealth, 86 St. Rep. 305; 6 S. W. Rep. 155. Ky. 440 (1887) ; s.c. 8 Am. St. Rep. 305; 6 S. W. Rep. 155. 186 HOMICIDE. [chap. VII. reasonable ground to believe, that his life is thereby en- dangered, he may even take life in its apparent necessary defence. So great, however, is the law's regard for human life, that he must be careful and not violate the restriction that law and society have placed upon this right of self- defence ; to wit, he must act from necessity, or reasonable apparent necessity, and not be in fault.^ Not only may the person assaulted do this, but another may do it for him. This other person, in such case, steps into the place of the assailed, and there attaches to him not only the rio-hts, but also the responsibilities, of the one whose cause he espouses. If the life of such person be in immediate danger, and its protection requires life for life, or if such danger and necessity be reasonably apparent, then the volunteer may defend against it, even to the extent of taking life, provided the party in whose defence he acts was not in fault. He in- terferes at his peril, if the person slain was not in fault. A person interposing, if he be a stranger, should act with much caution. This necessarily follows, because he takes the place of one of the combatants, and can only do for him what he had a right to do, under the circumstances, in defence of himself. Thus if A unlawfully assaults B, endangering the latter's life, C has no right, because he may come upon the scene of conflict at a time when, during its progress, A is in danger, to kill B. This would l)e' murder in C\ just as it would be in A. Any other rule could not be tolerated. The innocent cannot be sacrificed to save the guilty. This would be paradoxical. A volunteer must not kill in behalf of one in fault. This would be what some writers have termed a negligent killing. He may, however, do so for one not in fault, if the impending danger thus brought about be either actual or apparent. In other words, as the person not in fault may, if he believes, and has reasonable grounds to believe, that his life is in im- mediate danger, defend it to the extent of taking life, so another may act upon the like appearances as to such danger, and defend it for him to the same extent. . If a felony is attempted, in killing the attempter, tln-ough the necessity to save an innocent person, the one so doing is in the condition 1 Sec Stanley v. Commonwealth, 8G Ivy. 440 (1887) ; s.c. 9 Am. St. Rep. 305 ; G S. W. Hep. 155. SEC. 169.] DEFENCES TO HOMICIDE. 187 of se defendo in defending the one not in fault. In such a case, the doctrine of self-defence in all its principles extends to the accused, just as it would if the felony had been at- tempted upon him, or as it would apply to the one in danger if he had done the killing.^ Sec. 1G9. Same — Reasonable belief in iiiiniiuent dan- ger. — To excuse a homicide on the ground of self-defence the jury must be satisfied that the defendant killed the deceased when he was, in fact, in imminent danger of losing his life, or of suffering great bodily harm at the hands of the deceased.^ And it has been decided, most favorably to the defendant, that the existence of the reasonable apprehension of actual or apparent danger is to be considered from the standpoint of the defendant at the time of the homicide, and not from the standpoint of the jury in the light of the facts proved.^ By imminent danger is meant immediate danger, such as must be instantly met, and cannot be guarded against by call- ing upon others for assistance, or upon the law for protection.* And it is said in Territory v. Baker ^ that by the term " great bodily harm " is meant great personal injury. But the fear of great personal injury must be something more than appre- hension, however imminent, of a mere battery, not amounting to felony. In order to justify the assault and the slaying of the assailant, within the meaning of this section, there must be an apparent design on the part of such assailant to either take the life of the person assailed, or the infliction of some great personal injury, amounting to a felony, if carried out and, in addition thereto, there must be imminent danger of such design being accomplished. The question whether, under all the circumstances, there are grounds for a reasonable belief in the mind of the slayer that a necessit}' existed for taking the life of the other, is one for 1 See Stanley i\ Commonwealtli, 86 Pa. St. 205 (1861); s.c. 80 Am. Ky. 440 (1887); s.c. 9 Am. St. Rep. Dec. 481 ; Commonwealth v. Carey, 2 .S05; 6 S. W. Rep. 155. Brewst. (Pa.) 404 (1870) ; Patillo r. 2 See State r;. Vines, 1 Houst. Cr. State, 22 Tex. App. 586 (1887); sc Cas. (Del.) 424 (1874); State r. New- 3 S. W. Rep. 766: Bell r. State. 20 comb, 1 Houst. Cr. Cas. (Del.) 66 Tex. App. 445 (1886). (1858) ; State v. Hollis, 1 Houst. Cr. ^ United States v. Outerhridsf, 5 Cas. (Del.) 24 (1858), Sawy. C. C. 620 (1868). 3 Pond I'. People, 8 'Mich. 150 ^13 Pac. Rep. (N. M.) 30 (1887). (1800) ; Logue v. Commonwealth, 38 188 HOMICIDE. [chap. VII. the determination of the jury, in the solution of wliich the condition of both the parties at the time is a legitimate sub- ject for consideration.^ Regarding the legal limitations of fear it has been said^ that the homicide is to be viewed (1) from the defendant's standpoint; (2) from the standpoint of the jury, with all the facts before them ; or (3) from the stand- point of an ideal reasonable man. We have very high authority to the effect that unless the defendant's fear is "reasonable" in one of the two latter senses, it will not avail ^ as a defence. An erroneous idea of danger, when negligently adopted, so far from being an absolute defence to an indict- ment for homicide, perpetrated under the influence of such fear, would surely be ground for a verdict of manslaughter. On the other hand, it is thought that the great weight of authority now is to the effect that an honest non-negligent belief of danger to life wall be an excuse to a homicide com- mitted under such fear. The leading case on this topic, that of Levitt,* was that of a man suddenly roused from his sleep by a noise in the kitchen, and supposing a burglar to be in the house, killing the supposed burglar, who was in fact only a visitor of one of the servants. This was held to be excusable homicide. In his criticism of the case Foster says, that if Levitt had negligently come to this conclusion, the cause would have been one of manslaughter. This case has been followed by many others in which what may be called the subjective test is followed, and in which it is held that the reality of the fear is to be determined from the stand- point of the party accused. In Pennsylvania, in particular, this position is maintained with great emphasis, it being there held that the issue is, not what the jury, with all the evidence before them, would believe, or what would an ideal i-easonal)le man believe, but what was the belief of the defendant him- 1 Johnson v. State, 17 Ala. G18 Lister r. State, Tex. App. 17 (1878); (1850); State r. Bohan, 10 Kan. 28, State v. Cain, 20 W. Va. G79 (1882). 6.J (1877) ; Cotton t^. State, iU Mi.ss. ^ 15 Cent. L. J. 2(5;',. 504(1850); Pfonier i-. People, 4 Tark. ^ See Coninionwealtli v. Ilillianl, Cr. Cas. (N. Y.) 558 (1800) ; State v. GO Mass. (2 Gray) 204 (1854) ; Wes- Harris, IJones (N. C.) L. 100 (185r,); ley v. State, 37 Miss. 327 (1850); Goodall V. State, 1 Oreg. 333 (1801) ; State v. McGreer, 13 S. C. 464 (1880). PC. 80 Am. Dee. 30G ; Jackson v. •» Fost. 294. State, Baxt. (Tenn.) 452 (1873) ; SEC. 170.] DEFENCES TO HOMICIDE, 189 self at the time. If he negligently believed in extreme dan- ger, he would be guilty of manslaughter ; but if he non- neoligently came to this belief, and killed his assailant under this conviction, the belief being that this was the only way of saving his own life, or of preventing a great felony on his person, then he should be acquitted.^ Sec 170. Same — Grounds for belief of dang-er. — No general rule, applicable to all cases, can be laid down as to what is, ,as a matter of law, sufficient ground to cause a reasonable belief of imminent danger, but the question must depend, to a great degree, upon the facts and circumstances of each x^irticular case. It may safely be said, however, that the bare fact that a man intends to commit murder or otlier atrocious felony, without any overt act indicative of any such intention, will not excuse the killing of such person by way of prevention. There must be some overt act indicative of imminent danger at the time.^ To justify a homicide the danger need not be actual, if the accused acted on a reasonable appearance and belief of dan- ger. It was thus held in Jordan v. State,^ where the defend- ant, finding his hogs attacked by the deceased's dogs, procured . his gun, and on approaching and asking deceased if he was going to kill defendant's hogs, was answered by deceased: ''No, damn you. I'm going to kill you," and saw deceased put his hand behind him ; but after the deceased Avas shot by de- fendant it was found that he had no weapon except a shut pocket-knife, and had no hip pocket. In the somewhat similar case of Guice i\ State ^ it was held that the fact of deceased having put his hand to his hip, as though to draw a pistol, when he was driving by a store and saw defendants in the doorway, did not justify their following tlie wagon and firing 1 Commonwealth v. Scibert (Mass.), (Teiin.) :^76 (1872) ; Grainger r. State, Horr. & T. Self Def. 686 (1806). 5 Yerg. (Tenn.) 4o9 (18oU) ; Kex. r. 1 Am. L.J. (Ohio) 31; Logue v. Com- Scully, 1 Car. & P. 319 (1824) ; s.c. monwealth, 38 Pa. St. 265 (1861); 12 Eng. C. L. 191 ; Keg. r. Thurborn, Commonwealth v. Carey, 2 Brewst. 1 Den. C. C. 388 (1849). (Pa.) 404 (1870). See Teal v. State, •- See Stoneham r. Commonwealth, 22 Ga. 75 (1857); Commonwealth v. 25 Gratt. (Va.) 887 (1874). Woodward, 102 Mass. 155 (1869) ; 3 n Tex. App. 435 (1882). People V. Lamb, 2 Keyes (N. Y.) 360 ^ 60 Miss. 714 (1883). (1866); Williams v. State, 3 Heisk. 190 HO:SIICIDE. . [chap. VII. upon him, and when he jumped to the ground, shooting and stabbing him till he died, because the apprehension caused by the threatening gesture must have been dissipated ere the killing. Sec. 171. Same — Words or threats. — Mere words or threats uttered by deceased, however abusive or violent, with- out any overt act or other indication of an intent to follow up the words with an assault to carry out the threats, are not sufficient grounds for the reasonable belief of imminent dan- ger, which is necessary to sustain the plea of self-defence on a trial for criminal homicide.^ Justice Field says, in the case of United States v. Outerbridge,^ that " Mere threats against the person or life of another, without any attempt at execu- tion, will not justify a homicide, nor even when such attempt at execution is made, unless the danger is so imminent as not to admit of delay in meeting it, on the part of the assailed." To justify the killing the danger must be imminent and immediate. Thus, in a trial for murder on an indictment drawn under the Texas Penal Code^ which provides that tlu'eats afford no justification for homicide, unless, at the time, the person killed manifested by some act then done an intention to execute the threat, it appeared in evidence that_ the defendant, being on his way to the post-office with a 1 Jackson v. State, 77 Ala. 18 Jackson v. State, 6 Baxt. (Tenn.) 452 (1884); Taylor v. State, 48 Ala. 180 (1873); Hippy i'. State, 2 Head (Tenn.) (1872); Mize r. State, 36 Ark. 653 217(1858); Williams \. State, ZlW\%k. (1880) ; People v. Tamkin, 62 Cal. (Tenn.) 376 (1872) ; s.c. 1 Gr. Or. 4G8 (1882); People v. Scoggins, 37 Rep. 255; Wall. i-. State, 18 Tex. 682 Cal. 676 (1869); People v. Lombard, (1857); s.c. 70 Am. Dec. 302; Lynch 17 Cal. 316 (1801) ; United States r. v. State,'2\ Tex. A pp. 350 (1888) ; s.c. Knowlton, 3 Dak. 58 (1882) , United 5 Am. St. Rep. 888 ; 6 S. W. Kep, 190; States I'. Leighton, 3 Dak. 29 (1882); Penland v. State, 19 Tex. App. 365 s.c. 13 N. W. Rep. 347; Roberts r. (1886); Peck v. State, 5 Tex. App. State, 65 Ga. 430 (1880); Malone- 611(1879); Williams f. State, 2 Tex. 7'. State, 49 Ga. 210 (1873); Gilmore App. 271 (1878); United States v. r. People, 124 111. 380 (1888) ; s.c. 15 Outerbridge, 5 Sawy.C. C. 620 (1868) ; X. I'l Rep. 758; Parsons v. Common- United States v. Wiltberger, 3 Wasli. wealth, 78 Ky. 102 (1879); Edwards C. C. 515 (1819). See Lander r. State, /•. State, 47 Miss. 581 (1873) ; State v. 12 Tex. 462 (1854) ; Johnson v. State, Elliott, 90 Mo. 350 (1886) ; s.c. 2 27 Tex. 758 (1865) ; Sims v. State, 9 S. W. Rep. 411; State v. Rider, 90 Tex. App. 586 (1881). Compare lAy en Mo. 54 (1886) ; State v. Harris, 73 Mo. r. State, 33 Tex. 525 (1870). 287 (1880); Anderson v. Territory, 2 5 Sawy. C. C. 620, 625 (1868). (N. M.) 13 Pac. Rep. 21 (1887) ; State ^ Texas Penal Code, art. 608. V. Merrill, 2 Dev. (-X. C.) L. 209 (1829) ; SEC. 171.] DEFENCES TO HOMICIDE. 191 double-barrelled gun, was met by one with wliom he had had trouble. In reply to a question by the prisoner, ■ deceased said, " If I get my gun I will show you what I am in a hurry for." His gun was in the house forty yards away. Defendant shot him, and at the trial asked the court to charge that if the deceased was advancing towards his house to get his gun to kill the defendant, or to do him some serious injury, he had the right to act in advance and make the attack. The court charged that the threat, would furnish no justification unless the deceased by some act done at the time manifested "an immediate intention to execute his threats," and this instruction was upheld on appeal.^ In Penland's Case,^ it is satd that " the belief that a per- son designs to kill me will not prevent my killing him from being murder unless he is making some attempt to execute his design, or at least is in apparent situation to do so, and thereby induces me reasonably to think that he intends to do it immediately.^ No contingent necessity will avail.'* Past threats or conduct of the deceased, however violent, will not excuse a homicide without sufficient present demon- stration to authorize the belief that the deadly purpose then exists, and the fear that it will then be executed. It is said, in People v. Westlake,^ that there must be such a demonstra- tion of an intention to execute the threat as to induce a rea- sonable belief that the party threatened will lose his life or suffer serious bodily injury unless he immediately defends himself against the attack of his adversary .^ In State v. Home," the court say, "there must not only be reasonable ground to believe, but the purpose to execute the design must be accompanied by some attempt to execute it, or the person must at least be in an apparent situation to do so, and so induce a reasonable belief that he intends to do it imme- diately.^ 1 Lynch r. State, 24 Tex. App. 350 Tex. App. 547 (188G) ; s.c. 53 Am. (1888); s.c. 5 Am. St. Rep. 888; 6 Rep. 389; Holt v. State, 9 Tex. App. S. W. Rep. 190. 571 (1881). -' 19 Tex. App. 365 (1886). a G2 Cal. 303 (1882). 3 State r. Scott, 4 Ired. (X. C.) L. « People c. Tamkin, G2 Cal. 468 409 (1844). (1882). 4 See Lander v. State, 12 Tex. 462 ' 9 Kan. 119 (1872). (1854). See also Hinton v. State, 24 » See State v. Clifford, 58 Wis. 113 Tex. 454 (1859) ; Weaver r. State, 19 (1883) ; s.c. 16 N. W. Rep. 25. 192 HOMICIDE. [chap. VII. Sec. 172. Same — Former acts or attempts. — A homi- cide is not excusable on the ground of self-defence, because of previous hostile acts or injuries, however violent, committed or inflicted by the person killed, without any overt act show- ing danger to the slayer at the time of the killing.^ Thus the killing will not be excused by proof that the deceased had lain in wait and shot at the defendant at some time previous to the killing.2 But where the acts of the person killed, his character and antecedent conduct, and the circumstances of the meeting, afford reasonable ground for belief that to kill a person who has previously assaulted the slayer is the only mode of protection, the homicide is excusable.^ The plea of self-defence cannot be interposed, and the homicide will not be justifiable, where the evidence shows that the prisoner was the aggressor, or that he acted in retali- ation.* Thus it is said in Farris v. Commonwealth,^ that where the accused leaves the scene of the quarrel, and having obtained a shot-gun at the family residence, returns, and shoots the deceased, the court will not reverse a verdict of manslaughter, the right of self-defence not authorizing one to hunt up his adversary, and slay him under the idea that it is necessary to save his own life. Sec. 173. Same — Conspiracy. — A conspiracy to take life, even coupled with a previous unsuccessful attem]3t to carry it into effect, and knowledge thereof by the intended victim, will not constitute sufficient ground for a reasonable belief of imminent danger to justify the killing of the conspir- ators, or one of them, in the absence of anything going to sliow an intention to carry out the conspiracy at the time of the liomicide.*" In such a case the declarations of a co-con- spirator with deceased in seeking to kill the defendant, made 1 (iladden v. State, 12 Fla. [^^2 3 (\\(,^ ,._ Conininnwoaltli, 80 Ky. (180!)); Cahill r. IVople, UKi 111. ()21 ;^2 (1882). (188:5); Farris r. Commonwealth (Ky.), ■» People r. McLend, 1 Hill (N. V.) 1 S. W. Rep. 729 (1880); People r. .177 (1841); s.c. 25 Wend. (X. V.) McLeod, 1 Hill (N. Y.) 377 (1841); 483; 87 Am. Dec. 328. s.c. 25 Weiid, (N. Y.) 483; 37 Am. •"' 1 S. W. Kep. (Ky.) 729 (1880). Dec. 328; Jackson r. State, (i Haxt. " Henderson v. State, 77 Ala. 77 (Tenn.) 452 (1873). See Oder ;•. (1884) ; Simmons o. State, 79 Ga. 696 Commonwealth, 80 Ky. 32 (1882). (1887) ; s.c. 4 S. E. Rep. 894. - Parsons v. Commonwealth, 78 Ky. 102 (1879). SEC. 174.] DEFENCES TO HOMICIDE. 193 some time after the homicide, are not res gestce^ and are therefore not inadmissible.^ Sec. 174. Same — Gestures and menaces. — Xo mere ges- tures or menaces which do not constitute an assault, however irritating or provoking they may be, will ordinarily excuse a homicide,'-^ unless they show unequivocally an intent of the party making them to use a deadly weapon against the slayer.^ Thus in Wortham v. State * it is said that the mere raising of a stick, though the stick be capable of producing death, may not be sufficient to justify killing the assaulting party. But in the case of State v. St. Geme,^ where the defendant was on a trial for murder, proof that after the deceased had threatened the accused with great bodily harm, they met without design, and the motions of the deceased gave the accused reasonable ground to believe that he was about to execute the threat, and the killing was done under 1 Martin v. State, 25 Tex. App. 557 (1888) ; s.c. 8 S. W. Rep. 682 ; Tillery V. State, 24 Te.x. App. 251 (1888) ; s.c. 5 Am. St. Rep. 882 ; 5 S. W. Rep. 842. See State v. Glidden, 55 Conn. 46 (1887); s.c. 3 Am. St. Rep. 23; 8 Atl. Rep. 890; Spies v. People, 122 111. 1 (1887) ; s.c. 3 Am. St. Rep. 320; 9 Cr. L. Mag. 82!) ; 6 Am. Cr. Rep. 570; 12 jST. E. Rep. 865; 17 N. E. Rep. 898. 2 Lewis r. State, 51 Ala. 1 (1874) ; Wortham i-. State, 70 Ga. 336 (1883) ; Roberts v. State, 05 Ga. 430 (1880) ; Malone v. State, 49 Ga. 210 (1873) ; State V. Elliott, 90 Mo. 350 (1886) ; s.c. 2 S. W. Rep. 411; United States V. Outerbridge, 5 Sawy. C. C. 620 (1868). In State v. Elliott, 90 IMo. 350 (1886); s.c. 2 S. W, Rep. 411, the court instructed the jury that, " When a person strikes another with a deadly weapon, in a manner calculated or likely to produce death, no words of reproach or gestures, liowever irritat- ing or provoking, amount to or con- stitute any justification or excuse in law for the killing, if death results from such striking." A criticism being made upon the use of the word 13 "gestures" in the instruction, the court said: "Wej:;annot see that the use of this word, as applied to the facts in evidence, was in any manner calculated to mislead a jury of ordi- nary intelligence; and, besides this, it is in accord with what is ruled in the cases of State v. Brown, 64 Mo. 373 (1877), and State v. Starr, 38 Mo. 271 (1866). In the last case cited it is said: 'When there is lawful provo- cation, the law, out of indulgence to human frailty, will reduce the killing from the crime of murder to man- slaughter ; but neither words of re- proach, how grievous soever, nor indecent, provoking actions or ges- tures, however much calculated to excite indignation or arouse the pas- sions, are sufficient to free the party killing from the guilt of murder.' " 3 De Arman v. State, 71 Ala. 351 (1882) ; Bailey v. State, 70 Ga. 017 (1883) ; State v. St. Geme, 31 La. An. 303 (1879) ; Guice v. State, 60 Miss. 714 (1883) ; Bang v. State, 60 Miss. 571 (1882) ; Tillery v. State, 24 Tex. App. 251 (1888); s.c. 5 Am. St. Rep. 883 ; 5 S. W. Rep. 842. * 70 Ga. 336 (1883). 6 31 La. An. 302 (1879). 194 HOMICIDE. [chap. VII. the belief that it was necessary in self-protection, this was held to justify an acquittal. In De Arman v. State ^ the defendant addressed the de- ceased in a peaceable manner, and the latter replied angrily and insultingly, and approached him with his hand on his pistol pocket as though to draw and fire. The defendant was held to be justified in firing first, though it subsequently appeared that the deceased had no weapon. In Tillery v. State 2 there was evidence to show that deceased bore enmity against defendant, and had threatened to kill him. They met while riding, and a controversy arose, when deceased turned in his saddle towards defendant, and placed his right hand to his right side as if to draw a pistol, whereupon defendant shot him. A pistol was found on the body of the deceased on the right side. The court lield that the issue of self-defence was properly submitted to the jui-y. Sec. 175. Same — Possession of weapons. — The fact that a person has deadly weapons, or even that lie presents them, is not an 'excuse for killing him unless he manifestly intends to use them against the slayei- ; ^ but where such an intention plainly appears, jt affords ground for reasonable belief of imminent danger which will justify the killing.* Thus where on a trial for murder it appeared that the only unusual danger to defendant was in the fact that deceased had a stone in his hand, an instruction that unless the stone was a dangerous weapon, or, to a reasonable person in the de- fendant's position, appeared to be, he was not justified in striking the fatal blow, was held to be correct.^ But if a gun be pointed at one in a threatening manner, under such circumstances as to induce a reasonable belief that it is loaded and will be discharged, and thereby produce 1 71 Ala. 051 (1882;. * People v. Anderson, 44 Cal. G5 2 -24 Tex. App. 251 (1888) ; s.c. 5 (1872) ; People v. Payne, 8 Cal. .S41 Am. St. Kep. 883; 5 S. W. Rep. 842. (1857) ; State v. Kliodes, 1 Iloust. Cr. 8 Roberts v. State, (55 Ga. 430 Gas. (Del.) 470 (1877) ; State ». Potter, (1880) ; State v. Brittain, 89 N. C. 13 Kan. 414 (1874) ; State c. Mullen, 481 (1883) ; Goodall v. State, 1 Oreg. 14 La. An. 577 (1859) ; Lamarr. State, 3:!3 (1801); s.c. 80 Am. Dee. 390; 04 Miss. 428 (1880); s.c. 2 So. Rep. Bode r. State, Tex. App. 424 (1879). 12; State r. Eaton, 75 Mo, 586 See State r. Maliaii, 08 Iowa, 304 (1882). (1880); 8.C. 27 N. W. Rep. 249. & State v. Malian, 08 Iowa, 304 (1880) ; s.c. 27 X. W. Rep. 249. ,SEC. 175.] DEFENCES TO HOMICIDE. 195 death or inflict great boclily injuiy on the person threatened, such person will be justified in using whatever force may be necessary to avert that apparent danger ; and his right is not affected by the fact that the gun was not loaded.^ Where the deceased had repeatedly threatened to shoot the prisoner, and the prisoner kills deceased in the act of drawing a pistol upon him, instantly, where he has no other probable means of protecting himself or getting out of the way, it is a cause of justifiable homicide .^ It is thought that the real intention of the deceased is immaterial, if from the nature of the attack, the circumstances surrounding the parties, and the conduct of the deceased, there is reasonable ground to believe that there is a design to destroy life, the killing of the assailant will be justifiable ^ Thus there being evidence that the deceased was a turbulent character, that the defendant had had a quarrel with him, and that the deceased had seized his pistol when the homicide was committed, it was held that the defendant was entitled to an instruction that he was justified in killing the deceased if he had reasonable ground to apprehend immediate danger, though in fact the deceased intended no harm.* Where it appeared in evidence that the title to a piece of land being in dispute, the defendant placed upon the premises some posts, intending to build a fence, and the deceased went with the other claimant of the land and began to remove the posts, being armed with a pistol, which he drew upon defendant, who then shot him, the homicide was held to be justifiable.^ In Lamar v. State ^' the defendant, with several others, created a disturbance in a town, and finally shot a man, after which they retired to a place a hundred yards from the business portion of the town, where they amused themselves firing off their pistols • the deceased and other citizens armed themselves, and went 1 People V. Anderson, 44 Cal. 05 s.c. 2 So. Rep. 12, State v. Eaton, 75 (1872); State v. Mullen, 14 La. An. Mo. 586 1882s, Shorter r. People, 2 577 (1859). N. Y. 193 (1849;, s.c. 61 Am. Dec. ■^ State r. Rhodes, 1 Houst. Cr. Cas. 286; Goodall v. State, 1 Greg. 33a (Del.) 476 (1877). 1861; ; s.c. 80 Am. Dec. 396. 3 People V. Payne, 8 Cal. 341 (1857) ; * State r. Eaton, 75 Mo. 586 ("1882). Commonwealth r. Selfridge (Mass.), 5 j>eople r. Payne, 8 Cal.341 (1857;. Horr. & T. Self Def. 1 (,1806;; <■■ 64 Miss. 428 (1886) ; s.c. 2 So. Lamar v. State, 64 Miss. 428 (188G; ; Rep. 12. 196 HOMICIDE. [chap. VII. where tlie defendant and his companions were, and tokl them not to come back and create further disturbance ; and the deceased was killed by the defendant. The court held that a refusal to charge that if the deceased and others so exhibited their weapons during the interview as to raise a reasonable . apprehension in the mind of the defendant that they were about to make a deadly assault upon him, he should be ac- quitted, was a reversible error. Sec. 176. Same — Assault. — If an assault is made undet circumstances which create a just apprehension of imminent danger of death or great bodily harm to another, it is ade- quate ground for that reasonable fear of immediate danger which will justif}- the killing of the assailant;^ but an assault without a weapon, apjiarently causing peril of a mere indig- nity to the person, or of a mere battery, from which great bodily harm cannot reasonably be apprehended, will not excuse a resistance so violent as to take the life of the assailant, even though such peril cannot be escaped by retreat, or tlie danger may be thereby increased.^ Thus one pursued and violently threatened by an assailant with his fists, although being at the time crippled by a fracture of his ribs, will not be justi- fied in the use of a concealed deadly weapon, resulting in the death of the assailant.^ But in Commonwealth v. Crawford,* where one of the judges of election being violently assaulted 1 See Carroll v. State, 23 Ala. 28 State r. Middleliam, 62 Iowa, 150 (1853) ; s.c. 58 Am. Dec. 282 ; People (1883) ; s.c. 17 N. W. Kep. 44G; State V. Scott, 09 Cal. 69 (1886); s.c. 10 v. Kennedy, 20 Iowa, 569 (1866); Pac. Rep. 188 ; Murpliy v. People, 37 Slate v. Thompson, Iowa, 188 (1859); 111. 447 (1885) ; De Forest v. State, 21 s.c. 74 Am. Deo. 342 ; State v. Rogers, Ind. 23 (1863); State v. Peru/o, 70 18 Kan. 78 (1877); s.c. 26 Am. Rep. Iowa, 657 (1886); s.c. 8 Or. L. Mag. 754; Ex parte Hamilton, 65 Miss. 147 156; 28 N. W. Rep. 457; Common- (1887); s.c. 3 So. Rep. 241; Hail v. wealth f. Riley, 1 Thacli. C. C. (Mass.) State (Miss.), I So. Rep. 351 (1887) 471(1837); Commonwealth r. Craw- State v. Rider, 90 Mo. 54 (1886) ford, 8 Phila. (Pa.) 490 (1870) ; Cope- Shorter v. People, 2 N. Y. 193 (1849) land V. State, 7 Humph. (Tenn.) 479 s.c. 51 Am. Dec. 28(5 ; Stewart v. (1846); Alexander v. Stale, 25 Tex. State, 1 Ohio St. 66 (1852) ; Common- App. 260 (1888) ; s.c. 8 Am. St. Rep. wealth v. Drum, 58 Pa. St. 9 (1868) ; 438 ; 7 S. ^Y. Rep. 867. Isaacs v. State, 25 Tex. 174 (I860) ; - See Myers v. State, 62 Ala. 599 Honesty v. Commonwealth, 81 Va. (1878) ; Ei"land r. State, 52 Ala. 322 283 (1886). (1875) ; Duncan v. State, 49 Ark. 3 gtate r. Thompson, 9 Iowa, 188 643 (1887) ; s.c. 6 S. W. Rep. 164; (1859) ; s.c. 74 Am. Dec. 342. Davis V. People, 88 III. 350 (1878) ; * 8 Phila. (Pa.) 490 (1870), SEC. 176.] DEFENCES TO HOMICIDE, 197 by persons who broke into the room, where the board was assembled, shot one of his assailants who was in the act of hurling a missile at him, it was held justifiable homicide. And in Commonwealth v. Riley,^ where in an affray A knocked down and beat B, and C, a bystander, believing that the life of B was in danger, gave him a knife to defend him- self to prevent further mischief, and B killed A with a knife, it was held that C was justified in giving B the knife. It is thought that if a person who is going liis own road, in a laudable pursuit, and is assailed in that road b}" another, with a hickory stick of dangerous charactei, and thereupon slays his adversary with a knife, this is homicide in self- defence.^ But where the defendant insulted and threatened the deceased, and, when warned against approaching, took hold of him,, whereupon the deceased struck defendant lightly with a lio-ht cane, and the defendant tlien struck deceased a murderous blow, it was held that there was no legal provo- cation, and that the homicide was murder.^ In a case where there was evidence that a few days before the homicide the deceased had threatened to kill the defendant; that such threat had been communicated to him ; that the general repu- tation of the deceased was that of a dangerous man, likely to execute the threat; that the deceased, who was a power- ful man, violently assaulted the defendant with a stick ; and that the defendant then begfan shootino- at him while he was continuing the assault, proof of such facts was held to establish a case of self-defence.* And where a man, on return- ing to his own house, finds himself barred out therefrom by another, and then repeatedl}^ demands and is denied admis- sion, he has a legal right to break in the door ; and if he encounters resistance on thus entering, and be first stricken by the unlawful occupant with a deadly weapon, and then meeting force with force, he takes the life of such occupant, such killing would seem to be excusable homicide, committed in self-defence.^ 1 Thach. C. C. (Mass.) 471 (1837). * Alexander v. State, 25 Tex. App. 2 Copcland r. State, 7 Humph. 2G0 (1888) ; s.c 8 Am St. Rep. 438 ; (Tenii.) 479 (1846). 7 S. W. Rep. 867. 3 Honesty v. Commonwealth, 81 '' l>e Forest v. State, 21 Ind. 23 Va. 283 (1886). (1863). 198 HOMICIDE. [chap. VII. A false statement made by a prisoner as to the condition of his weapon will not prevent him from setting up the plea of self-defence, should subsequent events and circumstances call for and justify such use. Thus where a defendant, engaged in an altercation with H., on being approached by the latter with a pitchfork, drew his revolver and warned him not to approach. H. thereupon stopped, and the defend- ant drew away, but after going a short distance the defendant stopped, and stated to H. that he had scared him with an empty revolver. H. then assaulted the defendant, who shot and killed him. The court held that the defendant was not precluded from availing himself of the plea of self-defence by reason of his statement that the revolver was unloaded, although deceased was induced thereby to make the assault, unless his purpose in making the statement was to create an excuse for taking the life of the deceased.^ Sec. 177. Same — Assault in lieat of passion. — The doctrine that where a person attacked has reasonable cause to believe that his assailant is approaching him with intent to take his life, or to commit some aggravated felony on his person, and that the danger is imminent, he may kill his assail- ant without retreating, provided he has first done all he could to avoid the difficulty, if a rule at law at all is not applicable to a homicide committed in resisting an assault made in the heat of passion, suddenly aroused in the course of a quarrel, by one man upon another, the relations between whom had theretofore been of a friendl}- cliaracter.^ At the trial of an infornration for murder, the evidence showed that the homicide occurred at a gaml)ling-table, with ref- erence to money placed in the gambling-pot by defendant and subsequently withdrawii ; that deceased demanded of tlie de- fendant to return it, having at the time a knife in his hand ; and that the defendant drew a pistol which the deceased seized, and in the struggle which ensued deceased was shot, whether by design or accident was uncertain. The court instructed the jury that if the defendant had agreed to return the money and ^ State V. Perigo, 70 Iowa, 657 - Duncan >\ State, 49 Ark. 543 ri886) ; s.c. 8 Cr. L. Mag. luG ; 28 (1887) ; s.c. G S. W. Kcp. 104. N. W. Kep. 457. SEC. 178.] DEFENCES TO HOMICIDE. 199 could have avoided any necessity for killing the deceased by doing so, and by so doing he would have been in no danger to life or of bodily harm from deceased, and yet, with full knowledge of this situation, and after lie had agreed to return the money, by doing which all danger to him would have been avoided with safety to himself, he shot the deceased in a cool and deliberate manner, then such killing would be murder ; and that if defendant, prior to the fatal shot, if he Ihed it, could have avoided the necessity of killing deceased by replacing the money, if he agreed to do so, it was his duty to do so, and as between complying with such promise and slaying deceased, it was his duty to adopt that course which would have avoided any occasion for tiie shooting, if such course could be pursued with safety to the defendant. These instructions were erroneous because the withdrawing of the money by defendant, or refusing to replace it, even after a promise so to do, would not justify an}' act or demonstration of hostility on the part of the deceased, or modify defendant's right to repel such act or demonstration by adequate and proper means. ^ Sec. 178. Same — Provoking assault. — Where one ille- gally provokes an assault, or presses another into combat, he will not be justified in killing such other, no matter to what extremities he may be reduced.^ Thus where the accused, a tenant of the deceased, had habitually annoyed giils passing by his shop, and after the deceased had thrown his tools out of the shop, had drawn a dagger on him while he, the de- ceased, was tacking a cloth on the window, and having made a declaration in broken English relative to the transaction con- taining the word "kill," a few hours afterwards approached the deceased with abusive epithets, shook his fists in his face until deceased struck him with a stick, and, after retreat- ing about twenty feet, returned upon the deceased with a drawn dagger, and upon being knocked upon his knees by a second and a third blow of the stick, collared the deceased and stabbed him, of which stab he died, the homicide was held not to be justified on the ground of self-defence, that it J People V. Scott, 69 Cal. 69 (1886); 2 gee ante, § 95. s.c. 10 Pac. Rep. 188. 200 • HOMICIDE. [chap. VII. was at least manslaughter, and, if manslaughter, from its other circumstances it became, under the Texas Penal Code, murder because of the use of the dagger.^ What is sufficient provocation to justify a homicide always depends upon the particular circumstances of the case and the surroundings of the parties. In Ex parte Hamilton,^ H. and E. were charged with the murder of G., and it appeared that some weeks before, G. had assailed H.'s character in his paper ; that on the night of the homicide, just before G.'s train returned, H. and E. drove to the depot and looked into the cars ; that no vehicle was seen going from the depot immediately before the shooting ; H.'s pistol made a louder report than G.'s ; that the loud report was heard first, then the cry of murder from a person as if taken by surprise, then rapid shooting, too fast for only two pistols ; that the flashes came from several directions to the point where G. was found ; that immediately afterwards the parties charged were near the spot ; that some men got out of a vehicle, commenced shooting, and G. shot back ; that the marks indicated that more than two did the shooting. Other witnesses testified that the flashes indicated that only two were shooting; that the smaller report was heard twice, then the louder, then rapid shooting ; that H.'s pistol had six empty chambers, G.'s five ; G. was hit three times, H. twice ; that H. frequently went to the depot or hotels near, and took friends home with him ; that E. was in his employ, and accustomed to attend him ; that, when the shooting commenced, the vehicle was going rapidly. E. testifies that a shot was fired into the vehi- cle ; that H. and he jumped out, and upon seeing H. and G. shoot at each other, he ran away ; tliat no one else was Avith them until afterwards. The driver testified to about the same facts, and that his horse ran away when the shooting commenced. H. stated that he did the killing without assist- ance ; that, while in the vehicle, he was shot at and hit ; that he jumped out, advanced on G., shooting till he emptied his pistol, and that G. was knocked down by his shots, raised and fired, when he struck liim with his pistol and l)eat him down. H.'s [)hysician testiliL'd that tlic ball in liis stomach went first 1 Isaacs I'. Statc,23 Tex. 174 (18G0). 2 (J5 Miss. 147 (1887); s.c. 3 So. Rep. 241. SEC. 179.] DEFENCES TO HOMICIDE. 201 through his arm, and from its position mustjiave been shot while in a sitting posture. Upon habeas corpus proceedings, the court said that H. alone participated in the killing, and that he acted on provocation insufficient in law, and bail should be denied him ; but that E. should be either bailed or discharged. Sec. 179. Same — The slayer must be without fault. — One who kills another under an apprehension of death or great bodily harm from an assault, must have been free from fault in bringing on the difficulty, if he would contend that the homicide was excusable.^ Thus if A points a loaded pistol at B, and B grapples with liim to prevent the shooting, A cannot then shoot B, and allege that he did so in self-defence.^ This is a case where the evidence tends to show that the defendant had a difficulty with deceased, on the morning of the day of the killing, about the latter having whipped the former's younger brother, and the defendant fired at the deceased, who returned the fire ; that during the day the deceased made threats that he would kill the defendant, which came to the latter's ears; and that the defendant then with a gun in his hands, in position for instant use, met the deceased, asked him if he had made such threats, who without reply, ffi'ed at the defendant, wlio returned the fire with both barrels of his gun, killing the de- ceased, who before he fell, seemed to try to fire again, the theory of self-defence is not tenable.^ 1 Jackson v. State, 81 Ala. ;53 State, 09 Ind. 413 (1884); State v. (1886); Bakep v. State, 81 Ala. 38 Neeley, 20 Iowa, 108 (1865); State (1886); Tesney v. State, 77 Ala. 33 v. Teak, 85 Mo. 190 (1884); State (1884) ; Leonard v. State, 66 Ala. v. Hudson, 59 Mo. 135 (1875) ; State 461 (1880) ; Judge v. State, 58 Ala. v. Linney, 52 Mo. 40 (1873) ; State v. 40G (1877) ; s.c. 29 Am. Hep. 757 ; Starr, 38 Mo. 270 (1866) ; S/iurter v. Eiland i;. State, 52 Ala. 322 (1875); People, 2 N.»Y. 193 (1849); s.c. 51 Murphy ?;. State, 37 Ala. 142 (1861); Am. Dec. 286; Stewart v. State, 1 s.c. 1 Ala. Sel. Cas. 48; People v. Ohio St. 66 (1852) ; State z'. Beckham, Lamb, 17 Cal. 323 (1861) ; Peoi)le v. 24 S. C. 283 (1885); Tliiiston r. State, Stonecifer, 6 Cal. 405 (1856); Stiles 21 Tex. App. 245 (1887); Vaiden v. V. State, 57 Ga. 183 (1876); Koach v. Commonwealth, 12 Gratt. (Va.) 717 State, 34 Ga. 78 (1864); Lingo v. (1855). State, 29 Ga. 470 (1859) ; Haynes - Clieford v. State, 58 Wis. 477 V. State, 17 Ga. 465 (1855) ; Kinney (1883) ; s.c. 17 N. W. Rep. 304. V. People, 108 111. 519 (1884) ; Adams ^ Baker v. State, 81 Ala. 38 (1886). V. People, 47 111. 376 (1868) ; Story v. 202 HOMICIDE. [chap. VII. Intoxication not furnishing any excuse for homicide,^ the fact that the deceased was made drunk by liquor sold him by the defendant will not deprive the defendant of the right to protect himself against the assault of the deceased.^ In those cases where the assailant by his conduct had, before the homicide was committed, given notice of his desire to withdraw from the combat, and had really and in good faith endeavored to decline any further struggle, and the homicide was necessary to save himself from great bodily harm, it may be excusable/^ The right of self-defence is not impaired by mere prepa- ration for a wrongful act ; but such preparation must be accompanied by such demonstration, either verbal or otherwise, as is indicative of the wrongful purpose.* Neither will the right be created by the use of words, however opprobrious ; for if an assault by the person slain, made because of such words directed to him by the slayer, is so violent as to be out of all proportion to the provocation given, such extreme violence may constitute an excuse for the homicide.'^ Nor will the fact that the defendant was trespassing upon the property of the deceased at the time of the homicide preclude him from pleading self-defence where the assault by the deceased was witli a deadly weapon, and endangered the defendant's life.^ But where the killing was done in mutual combat, entered 1 See post, § 201-210. (Ky.) 240 (1877) ; Commonwealth ;•. 2 See Nichols v. Winfrey, 90 Mo. Riley, Thacli. C. C. (Mass.) 471 403 (1880) ; s.c. 2 S. W. Rep. 305. (1837) ; State v. Partlow, 90 Mo. 608 3 People V. Gonzales, 71 Cal. 569 (1886); s.c. 59 Am. Rep. 31 ; 4 S. W. (1887); s.c. 9 Or. L. Mag. 307; 12 Rep. 14; State v. Smith, 10 Nev. Pac. Rep. 783 ; People v. Robertson, (il 106 (1875); State v. Hill, 4 Dev. Cal. 046 (1885); s.c. 6 Am. Cr. Rep. & B. (N. C.) L. 491 (1839); s.c. 34 519; 8 Pac. Rep. 600; People r. Am. Dec. 396; Stojer v. State, 15 Bush, 65 Cal. 129 (1884) ; s.c. 5 Am. Ohio St. 47 (1864) ; s.c. 86 Am. Dec. Cr. Rep. 459 ; 3 Pac. Rep. 590 ; Peo- 470 ; Bonnard v. State, 25 Tex. App. pie V. Wong Ah Teak#63 Cal. 544 173 (1888) ; s.c. 8 Am. St. Rep. 431 ; (1883) ; People v. Westlake, 62 Cal. 7 S. W. Rep. 862 ; White ;-. State, 23 303 (1882) ; s.c. 4 Cr. L. Mag. 418; Tex. App. 154 (1887); s.c. 3 S. W. People c. Simons, 60 Cal. 72 (1882); Rep. 710; Roach v. State, 21 Tex. Stiles V. State, 57 Ga. 183 (1876); App. 249 (1887) ; Cartwright i-. State, Hittner v. State, 19 Ind. 48 (1862) ; 14 Tex. App. 486 (1884). State V. Perlgo, 70 Iowa, 657 (1886) ; * Cartwright v. State, 14 Tex. App. s.c. 8 Cr. L. Mag. 156; 28 N. W. 486(1884). Rep. 457 ; State v. Archer, 69 Iowa, = Brown i: State, 58 Ga. 212 (1877). 420 (1886) ; s.c. 29 N. W. Rep. 333; « State v. Perigo, 70 Iowa, 657 Terrell i.-. Commonwealth, 13 Bush (1886); s.c. 8 Cr. L. Mag. 156; 2b SEC. 180.] DEFENCES TO HOMICIDE. 203 into willingly, and in the knowledge of its liability to cause death to one or the other of the combatants, the slayer cannot plead self-defence to an indictment for killing his opponent in the fight.^ While the slayer must use all reasonable means to avoid doing the fatal act, yet, where it is ^)lainly apparent that ho is about to be assaulted with a deadly weapon, and he is not in a position to avoid it, the law does not require him to wait until his assailant gains a position equal to his own, and is upon equal terms with him in all respects ; but he may lawfully slay him so soon as it appears, from the acts of the assailant, that a mortal combat is unavoidable.^ Sec. 180. Same — Tlie killing" imist appear to be the last resort for safety. — In order to justify a homicide on the ground of self-defence, a person must employ all means Avithin his power, consistent with his safety, to avoid the danger and avert the necessity ; and he must retreat, if retreat be practicable.''^ But a person assaulted in his own N. W. Rep. 457. See State r. Arclier, 69 Iowa, 420 (1880) ; s.c. 29 N. W. Kep. o'iS. 1 People V. Tannan, 4 Park. Or. Cas. (N. Y.) 514 (18G0) ; Gilleland V. State, 44 Tex. 356 (1875). Com- pare State r. Ingold, 4 Jones (X. C.) L. 216 (1856) ; s.c. 67 Am. Dec. 283. - Bohannon r. Coniiiionvvealtli, 8 Bush (Ky.) 481 (1871) ; s.c. 8 Am. Rep. 474 ; 1 Gr. Cr. Rep. 613 ; Forten- berry v. State, 55 Miss. 405 (1877). 3 Morrison v. State, 84 Ala. 405 (1887) ; s.c. 4 So. Rep. 402 ; Finch v. State, 81 Ala. 41 (1886) ; Ingram v. State, 67 Ala. 67 (1880) ; Pierson V. State, 12 Ala. 149 (1847) ; Dmican V. State, 49 Ark. 543 (1887) ; s.c. 6 S. W. Rep. 164; Levells v. State, 32 Ark. 585 (1877) ; McPherson v. State, 29 Ark. 225 (1874); People ?'. Campbell, 30 Cal. 312 (1866) ; People V. Gatewood, 20 Cal. 146 (1862) ; People v. Hurley, 8 Cal. 390 (1857) ; Darby v. State, 79 Ga. 63 (1887) ; s.c. 3 S. E. Rep. 663; Stiles V. States, 57 Ga. 183 (1876) ; Mitchell V. State, 22 Ga. 211 (1857) ; s.c. 68 Am. Dec. 498 ; Davison v. People, 90 111. 221 (1878) ; Greschia r. People, 53 111. 295 (1870) ; Malier v. People, 24 111. 241 (1860) ; Schnier v. People, 23 111. 17 (1859) ; State v. Do)»iell,/,6d Iowa, 705 (1886) ; .s.c. 58 Am. Rep. 234 ; 27 N. W. Rep. 369 ; State v. Shclton, 64 Iowa, 333 (1884) ; s.c. 20 N. W. Rep. 459 ; Pond v. People, 8 Mich. 150 (1860); State v. Rheams, 34 Minn. 18 (1885) ; s.c. 24 N. W. Rep. 302 ; State v. Shippeij, 10 Minn. 233 (1865); s.c. 88 Am. Dec. 70; State V. Partlow, 90 Mo. 608 (1886) ; s.c. 59 Am. Rep. 31; 4 S. W. Rep. 14 ; State i'. Johnson, 76 Mo. 121 (1882) ; Parrish v. State, 14 Neb. 60 (1883) ; s.c. 15 N. W. Rep. 357 ; State V. Wells, 1 N. J. L. (Co.\e) 424 (1790) ; s.c. 1 Am. Dec. 211 ; People V. Sullivan, 7 N. Y. 396 (1852) ; Peo- ple V. Harper, 1 Edm. oel. Cas. (N. Y.) 180 (1845); Commonwealth v. Drum, 58 Pa. St. 9 (1808) ; Logite v. Commonweallh, 38 Pa. St. 265 (1861) ; s.c. 80 Am. Dec. 481 ; Hinton i;. State, 204 HOMICIDE. [chap. VII. dwelling-house is not bound to retreat.^ The reason of this is that being in his own house he is to be regarded as " at the wall." Every man's dwelling-house is said to be "his castle," and he is not required under any circum- stances to retreat from it, but may pursue Ins adversary until he has freed himself from all danger.^ This doctrine, however, is to be taken with some degrees of allowance; for even in his own house a man may not, needlessly, take life in his own defence.^ And it is said by the supreme court 24 Tex. 454 (1859) ; United States r. Wiltberger, 3 Wash. C. C. 618 (1819) ; United States t'. King, 34 Fed. Rep. 302 (1888). See Watson v. State, 82 Ala. 10 (1886) ; Dolau v. State, 81 Ala. 11 (1880) ; Jones v. State, 7() Ala. 8 (1884) ; People v. Gonzales, 71 Cal. 509 (1887) ; s.c. 9 Cr. L. Mng. 307 ; 12 Pac. Hep. 783 ; Haynes v. State, 17 Ga. 405 (1855) ; Hunijan v. State, 57 Ind. 80 (1877) ; s.c. 26 Am. Rep. 52 ; 2 Am. Cr. Rep. 318; Creek v. State, 24 Ind. 154 (1805) ; State v. Thomp- son, 9 Iowa, 188 (1859) ; s.c. 74 Am. Dec. 342 ; Tweedy v. State, 5 Iowa, 433 (1857) ; Mareum v. Common- wealth (Ky.) 4 S. W. Rep. 786 (1887) ; HoUoway v. Commonwealth, 11 Bush (Ky.) 344 (1875) ; Bohannon V. Commonwealth, 8 Bush (Ky.) 481 (1871); s.c. 8 Am. Rep. 474; 1 Gr. Cr. Rep. 613 ; Philips r. Common- wealth, 2 Duv. (Ky.) 328 (1805); State V. Harman, 78 N. C. 515 (1878) ; State I'. DI.xon, 75 N. C. 275 (187()) ; Erwin V. State, 29 Ohio St. 180 (1870) ; s.c. 23 Am. Rep. 733 ; 2 Am. Cr. Rep. 251 ; May v. State, 22 Te.v. A pp. 595 (1887); s.c. 3 S.W. Rep. 781 ; Williams V. State, 22 Tex. App. 497 (1887) ; s.c. 4 S. W. Rep. 04; Orman v. State, 22 Tex. App. 604 (1887) ; s.c. 58 Am. Rep. 062; 3 S. AV. Hep. 468; Hunni- cutt V. State, 20 Tex. App. 032 (1880) ; Bell V. State, 17 Tex. App. 538 (1885) ; Kinfj V. State, 13 Tex. App. 277 (1883) ; Foster v. State, 11 Tex. App. 105 (1882) ; Kendall v. State, 8 'IVx. App. 569 (1880). 1 Dolan r. State, 81 Ala. 11 (1880) ; Jones V. State, 70 Ala. 8 (1884); Car- roll V. State, 23 Ala. 28 (1853) ; s.c. 58 Am. Dec. 282 ; De Forest r. State, 21 Ind. 23 (1803) ; State v. Middle- ham, 02 Iowa, 150 (1883) ; s. c. 17 N. W. Rep. 446 ; Bledsoe v. Common- wealth (Ky.); 7 S. W. Rep. 884 (1888) ; People v. Lilly, 38 Mich. 270 (1878) ; Pond v. People, 8 Mich. 150 (1800); State v. Harman, 78 N. C. 515 (1878). Where the husband on entering his house detects his wife in suspi- cious circumstances with a paramour, and thereupon enters into a fight with him, standing not entirely on the de- fensive, and kills him, it is at the most manslaughter, or, if he stands on the defensive, and does not fight until he is attacked and threatened with death or great bodily harm, when, to save himself, he kills his assailant, it is excusable homicide, even if the other does not turn and flee out of the house. State v. Harman, 78 N. C. 515 (1878). - Carroll v. State, 23 Ala. 28 (1853) ; Pond v. People, 8 Mich. 150 (1800). See State v. Collins, 32 Iowa, 30 (1871) ; Commonwealth v. Sel- fridge (Mass.), 1 Ilorr. &. T. Self-Def. 1 (1800) ; Patten v. People, 18 Mich. 314(1809). 3 See Carroll v. State, 23 Ala. 28 (1853); Greschia v. People, 53 111. 295 (1870); State v. Middleham, 62 Iowa, 150 (1883) ; s.c. 17 N. W. Rep. 440; State v. Collins, 32 Iowa, 36 (1871); State v. Benham, 23 Iowa, 154 (1807) ; State v. Kennedy, 20 Iowa. 509 (1800) ; State v. Decklotts, 19 Iowa, 447 (1865) ; State v. Thomp- SEC. 181.] DEFENCES TO HOMICIDE. 205 of Vermont in the case of State v. Patterson ^ that a man's house is his castle only in the respect that it is sacred for the protection of his person and familj-. An assault on the house can be lawf uU}' resisted to the extent of using deadly weapons onl}' in case the assault is made with the intent either of taking the life of the inmate, or of doing him great bodily- harm, and such resistance is necessary to prevent such crime ; or in case the inmate has reason to believe from the circum- stances, and, in fact, does believe that it i.i necessary to pre- vent the commission of such crime. The principle that a man attacked in his own house is not called upon to retreat before taking the life of his assailant is said to be applicable in case of an altercation between partners in their place of business.^ Where the evidence shows that the defendant, when he fired the fatal shot, was standing at the door of his shop, with one foot on the lower step, a charge that to make out the case of self-defence the evidence must show that the difficulty was not provoked or encouraged by him ; that he was, or appeared to be. so menaced as to create a reasonable appre- hension of danger to his life, or of grievous bodily harm ; and that there was no reasonable mode of escape from such peril, does not antagonize the principle that a man is not bound to retreat from his own domicile.^ Sec. 181. Same — Duty to retreat. — The ancient doc- trine is that one assailed must retreat unless retreat will en- danger his safety ; and must refrain from taking life, if there is any other reasonable mode of escape. This doctrine still prevails in many states.* But it is said in the case of Run- yan v. State,^ that the ancient doctrine as to the duty of a person assailed to retreat as far as he can before he is justi- fied in repelling force by force, has been greatly modified in son, 9 Iowa, 188 (1859); Common- * See Morrison r. State, 84 Ala. 405 wealth V. Mead, 78 Mass. (12 Gray) (1887); s.c. 4 So. Rep. 402; State v. 167 (1858); People v. Rector, 19 Donnelly, 69 Towa, 705 (1886); s.c.. AVend. (N. Y.) 509 (1838). 58 Am. Rep. 234; 27 N. W. Rep. 309. 145 Vt. 308 (1873); s.c. 12 Am. Cow/mre State r. Middlcliam, 62 Iowa, Rep. 200. 150 (1883) ; s.c. 17 N. W. Rep. 446. 2 Jones v. State, 76 Ala. 8 (1884). & 57 Ind. 80 (1877) ; s.c. 26 Am. 3 Watson V. State, 82 Ala. 10 Rep. 52. (1886) ; s.c. 2 So. Rep. 455. 20G HOMICIDE. [chap. VII. this country, and has a much narrower application than for- merl}'. The real question is did the defendant, when assaulted, believe, and have reason to believe, that the use of a deadly wea^^on was necessary to his own safety. The weight of authority now is that when a person, being without fault in a place where he has a right to be, is violently assaulted, he may, without retreating, repel force by force, and if, in the reasonable exercise of his right of self-defence, his assailant is killed, he is justifiable.^ The supreme court of Ohio say, in the case of Erwin V. State,^ that where a person in the lawful pursuit of his business and without blame, is violently assaulted by one who manifestly and maliciously intends and endeavors to kill him, the person so assaulted, without retreating, although it be in his power to do so without increasing his danger, may kill his assailant if necessary to save his own life or prevent enormous bodily harm.^ Sec. 182. Same — Kigrlit to pursue assailant. — Where one is attacked by another who manifestly attem^Jts by vio- lence to take his life or do him great bodily harm, and under such circumstances that no retreat is practicable, he is not only not obliged to retreat, but may pursue his adversary until he has secured himself from all danger, and if he kill 1 See Kendall I'. State, 8 Tex. App. 164 (1873); s.c. 13 Am. Rep. 492; 569 (1880), wliere it is held that un- People v. Schryver, 42 N. Y. 1 (1870); der the Texas Code, articles 569, s.c. 1 Am. Rep. 480; State v. Patter- 574, if A violently attack B, and son, 45 Vt. 308 (1873); s.c. 12 Am. no purpose of serious injury is reason- Rep. 200. ably indicated, B, or C interfering In Finch r. State, 81 Ala. 41 (1886); for B, must, before killing A, resort s.c. 1 So. Rep. 565, L. and the defendant to all other means of prevention while riding together quarrelled, and though not bound to retreat. If A the former persuaded the defendant to attack B's property, C is not justi- dismount, which he did; L. then also fied in killing A unless the life or dismounted and cut a stick, and with person of B is in peril from the at- it and his knife attacked defendant, tack. The phrase " all other means " who in turn fouglit ami killed L. Tiie does not import all possible means, court held, that if the defendant covihl but all means reasonably proper and have safely and conveniently retreated effective under the circumstances. when attacked, without putting liim- - 29 Ohio St. 186 (1876) ; s.c. 23 self to disadvantage it was his duty Am. Rep. 733. to do so, although he would have •''See Bohannon v. Commonwealth, been compelled to let loose the mule 8 Bush (Ky.) 481 (1871) ; s.c. 8 Am. he was driving. Rep. 474; Stokes v. People, 53 N. Y. SEC. 183.] DEFEXCES TO HOMICIDE. 207 him in so doing it is justifiable self-defence. But the right, even in the most extreme case, to pursue and" kill a retreating assailant, is one which ceases as soon as the assailed has reasonable ground for believing the danger had ceased to be immediate and pending. ^ Sec. 183. Same — Defence of others. — Under the com- mon law the right of self-defence extends to the relationship of husband and wife, ])arent and child, master and servant,- and where a person kills another in the necessary defence of one to whom he bears any one of such relationships, he is excusable, the same as though he had committed the homi- cide in defence of his own person ; ^ but such a homicide is excused only under the same circumstances whicli would excuse the killing in self-defence. The danger must be apparent and imminent, and the killing must be the only means of avoiding it. Thus, where one of two brothers is in fault in bringing on an affray, the other has not the right to take life in his defence,'* unless he first retreats as far as is practicable, and endeavors in good faith to avoid the con- flict.^ But it has- been said that the fact that a man and woman live together in a state of concubinage, does not, of itself, justify a man in taking life in defence of the person of the woman, and it is not error, upon the evidence of such fact, to instruct the jury that the law of justification does not apply ."^ 1 Luby V. Commonwealth, 12 Bush Connaughty v. State, 1 AVis. lOo (Ky.) 1 (1876). See Holloway v. (185;J). Commonwealth, 11 Bush (Ky.) ;J44 ^ gee Smurr v. State, 105 Ind. 125 (1875) ; Boiiannon r. Comnionwealtli, (1885) ; s.c. 4 N. E. Rep. 445; Patten 8 Busli (Ky.) 481 (1871); s.c. 8 Am. v. People, 18 Mich. 314 (1809); s.c. Rep. 474; 1 Green Cr. Rep. 613; 100 Am. Dec. 173; Pond v. People, Carico v. Commonwealth, 7 Bush 8 Mich. 150 (1860) ; Staten v. State, (Ky.) 124 (1870); Young r. Com- .30 Miss. 619 (1856) ; State r. Brittain, nionwealth, 6 Bush (Ky.) 312 (1860); 89 N. C. 482 (1883) ; Parker v. State, Philips i". Commonwealth, 2 Duv. 31 Tex. 132 (1868) ; State v. Greer, (Ky.) 328 (1865) ; Pond ;•. People, 22 W. Va. 800 (1883) ; Hancock r. 8 Mich. 150 (1860) ; West v. State, 2 Baker, 2 B. & P. 260 (1800) ; 1 Hale Tex. App. 460 (1878). P. C. 484; Reg. v. Harrington, 10 2 Oliverr. State, 17 Ala. 587 (1850); Cox C. C. 370 (1866). Armistead r. State, 18 Ga. 704 (1855); * Smurr ;•. State, 105 Ind. 125 Waybright v. State, 56 Ind. 122 (1877); (1885) ; s.c. 4 N. E. Rep. 445. Cheek v. State, 35 Ind. 492 (1871); ^ State v. Greer, 22 W. Va. 800 Pond V. People, 8 Mich. 150 (1860) ; (1883). Staten v. State, 30 Miss. 619 (1856); ^ Parker v. State, 31 Tex. 132 Sharp V. State, 19 Ohio 387 (1850); (1868). 208 HOMICIDE. [chap, VII. In the case of Patten v. People,^ on a trial for a homicide resulting directly from a riotous assembly, there was evidence showing that the mother of the accused was in the house at the time when it was surrounded by the rioters, and being in feeble health, there was sufficient cause to apprehend her speedy death if the conduct of the rioters was allowed to continue ; but the court held that to render this available as an excuse for killing one of the rioters there must be proof that the rioters were informed of the condition of the mother, or that every reasonable and practical effort had been made to notify them of the facts, and that if such was the case the accused would have been excused to the same extent as if the danger to the life of his mother had resulted from an actual attack upon her person, or the like danger to the accused from an attack upon him. That is, he could resort to such forcible means, even with a dangerous weapon, as he believed to be necessary for protection, and even if such means should result in the death of any of the supposed assailants. Sec. 184. Same — Defence of property — Of the habita- tion. — Where a dwelling-house is assailed, with the intent to take life, or inflict great bodily harm, the owner or occu- j)ant may lawfully use such fatal means to protect himself and family as would be necessary if met by his assailant face to face in any other place. He is not bound to retreat, but may kill his assailant if it reasonably appears to be necessary for the protection of the dwelling.^ "A man's house is his castle," say the books,^ but it is his castle only in the sense that it is sacred for the protection of his person and his family.'* This principle applies to all the 1 18 Mich. 314 (18G9) ; s.c. 100 State v. Peacock, 40 Ohio St. 333 Am. Dec. 173. (1883) ; State v. Patterson, 45 Vt. 308 ■i People V. Walsh, 43 Cal. 447 (1873); s.c. 12 Am. Rep. 200; 1 Gr. (1872) ; s.c. 1 Gr. Or. Rep. 487 ; State Cr. Rep. 490; Stonemaii r. Common- 1-. Dugan, 1 Houst. Cr. Cas. (Del.) wealth, 25 Gratt. (Va.) 887 (1874). 5(33(1879); Stater. Horskin, 1 Houst. 3 state v. Patterson, 45 Vt. 308 Cr. Cas. (Del.) 11(5 (1862) ; McPher- (1873); s.c. 12 Am. Rep. 200; 1 Gr. son V. State, 22 Ga. 478 (1857); Hud- Cr. Rep. 400; Harcourt's Case, 5 gins V. State, 2 Kelly (Ga.) 173 (1847); Eliz. (1563) ; Fost. 319 ; 1 Hale P. C. People r. Coughlin, 67 Mich. 400 485, 486. (1887)'; s.c. 35 N. W. Rep. 72; Pond * State v. Patterson, 45 Vt. 308 V. People, 8 Mich. 150 (1860) ; People (1873) ; s.c. 12 Am. Kep..200; 1 Gr. V. Horton, 4 Mich. 67 (1856); Mor- Cr. Rep. 490. gan V. Durfee, 69 Mo. 469 (1879) ; SEC. 184.] DEFENCES TO HOMICIDE. 209 buildings adjacent to or connected with the dwelling-house proper. Thus*t was held in an early Michigan case, that a building thirty -six feet distant from* a man's house, used for preserving the nets employed in the owner's ordinary occu- pation as a hsherman, and also a permanent dormitory for his servants, is in law a part of his dwelling-house, though not included with the house by a fence. A fence is not nec- essary to include buildings within the curtilage, if within a space no larger than that usually occupied for the pur- poses of the dwelling and customary outbuildings.^ In the recent Michigan case of People v. Coughlin ^ the defence was that the killing was done in self-defence. At the time of the homicide the defendant was in his " root house," or outdoor cel- lar, and resisting an invasion of it. The court gave the same instructions as would have been applicable if this "root house" had been defendant's dwelling-house, and these instructions were sustained on appeal.^ And it is held by the supreme court of Missouri in the case of Morgan v. Durfee * that a 2)erson has the right to use a deadly weapon in defence of his office, even to the extent of taking his assailant's life. In this case, Morgan, a man who carried concealed weapons and was reputed to be a quarrelsome and dangerous man, and who was stronger than the defendant, entered defend- ant's business office and abused him with opprobrious epithets. Defendant ordered him to leave, but he refused and contin- ued the abuse. Defendant then pushed him with his open hand toward the door, when Morgan violently throttled him and moved his hand as if endeavoring to draw a weapon, whereupon the defendant, reaching out his hand to a safe to steady himself, grasped a seal and struck Morgan on the liead, knocking him down, and he subsequently died from the effects of tlie blow. In a civil action for damages, it was held that the defendant's act was justifiable. A homicide is justifiable only when the entry into the habitation is being made in a violent, riotous, or tumultuous manner, for the purpose of offering violence to some person ^ Pond V. People, 8 Mich. 150 ^ See Parrish v. Commonwealth, (18G0). 81 Va. 1 (1884). 2 07 Mich. 4GG (1887); s.c. 35 ■> GO Mo. 4G9 (1879); s.c. .33 Am. N. W. Hep. 72. Rep. 508. 14 210 HOMICIDE. [chap. VII. therein, or for the purpose of committing a felony by vio- lence,; 1 and where so made, if the owner or person in charge, after using gentle meafts to expel another from his house, resorts to violence, and is resisted, he may use foTce enough to overcome such resistance.^ But the fact that the deceased was a mere trespasser in the house. of another, having entered with the consent of one who had no right to give it, will not justify a homicide.^ It is thought that the right to protect one's own dwelling extends to that of another person. Thus, in Stoneman v. Commonwealth,* it was held that if the prisoner shot the deceased under a reasonable apprehension that the deceased intended to burn the dwelling-house of his mother, or commit some other known felony, and that there was imminent danger of such design being carried into execution, he was justified in so doing, though such danger was unreal. The idea that is embodied in the expression, "A man's house is his castle," is not that it is his property, and, as such, he has the right to defend and protect it by other and more extreme means than he might lawfully use to defend and protect his shop, his office, or his barn. The sense in which the house has a peculiar immunity is, that it is sacred for the protection of his person and his family. An assault on the house can be regarded . as an assault on the person, only in case the purpose of such assault be injury to the person of the occupant, or members of his family, and, in order to accomplish this, the assailant attacks the castle in order to reach the inmates. In this view, it is well settled that, in such case, the inmate need not flee from his house in order to escape from being injured by the assailant, but lie may meet him at the threshold, and prevent him from break- ing in by any means rendered necessary by the exigency ; and upon the same ground and reason as one may defend himself from peril of life or great Ijodily harm, hy means fatal to the assailant, if rendered necessary by the exigency of the assault. This is the full meaning of what was said by 1 People V. Walsh, 43 Cal. 447 ^ People r. Ilorton, 4 Mich. 67 (1872) ; s.c. 1 Gr. Cr. Kep- 487. (185^). 2 State V. Dufran, 1 Iloust. Cr. Cas. •» 25 Gratt. (Va.) 887 (1874). (Del.) 563 (1879). SEC. 184.] DEFENCES TO HOMICIDE. 211 Holyroyd, J., in charging the jury in Meade's Case.^ In that case some exasperated sailors had ducked Meade, and were in the act of throwing him into the sea, when lie was rescued by the police. As the gang were leaving, they threatened that they would come by night and pnll his house down. In the middle of the night a great number came, making menacing demonstrations. Meade, under an apprehension, as he alleged, that his life and property were in danger, fii*ed a pistol, by which one of the party was killed. Meade was indicted for murder. Upon that state of facts and evidence, the judge said to the jur}-- : " A civil trespass will not excuse the firing of a pistol at a trespasser in sudden resentment or anger, ... a man is not authorized to fire a pistol on every intrusion or invasion of his house. He ought, if he has reasonable opportunity, to endeavor to remove him without having recourse to the last extremity. But the making an attack upon a dwelling, and especially at niglit, the law regards as equivalent to an assault on a man's person ; for a man's house is his castle, and therefore, in the eyes of the law, it is equivalent to an assault, l^ut no words or singing are equivalent to an answer, nor will they authorize an assault in return. . . . There are cases where a person in heat of blood kills another, that the law does not deem it murder, but lowers the offence to manslaughter; as, where a party coming up by way of making an attack, and without there being any previous apprehension of danger, the party attacked, instead of having recourse to a more reasonable and less violent mode of averting it, having an opportunity so to do, fires on the impulse of the moment. In the present case, if you are of opinion that the prisoner was really attacked, and that the party were on the point of breaking in, or likely to do so, and execute the threats of the day before, he, perhaps, was justified in firing as he did. If you are of opinion that he intended to fire over and frighten, then the case is one of manslaughter and not of self-defence." The sense in which one's house is his castle, and he may defend himself within it, is shown in what is said by Hale,^ that, " in case he is assaulted in his own house, he need not flee as far as he can, as in other cases of se defeiido, for he 1 1 Lew. C. C. 184 (1823). 2 i Hale, P. C. 486. 212 HOMICIDE. [chap. VII. hath the protection of his house to excuse him from flying, as that would be to give up the protection of his house to his adversary hy flight." The true distinction between the house as property, on the one hand, and as castle for protection, on the other, is very palpable, viz. : If A in defence of his house, kill B, a trespasser, who endeavors to make an entry upon it, it is, at least, common manslaughter, uidess indeed, there were danger of life ; but where the trespass is barely against the property of another, the law does not admit the force of the provocation as sufficient to warrant the owner in making use of a deadly or dangerous weapon ; more particularly if such violence is used after the party has desisted from the trespass. In Carroll v. State,i it is said that " the owner may resist the entry into his house, but he has no right to kill, unless it be rendered necessary in order to prevent a felonious destruction of his property, or to defend himself against loss of life, or great bodily harm." Sec. 185. Same — Of other property. — The killing of another to prevent a mere trespass upon the property other than a habitation, and not to prevent a forcible felony, is not justifiable or excusable ;2 but the owner of property is justi- fied in using force to eject a trespasser, and in killing him if necessary to protect his own life or person against an assault by the trespasser in resistance of the attempt to eject him.^ Homicide in defence of property is excusable when necessary to defeat or prevent the commission of a forcible or atrocious 1 23 Ala. 28, 3G (1853) ; s.c. 58 Am. & M.) 401 (1847) ; s.c. 47 Am. Dec. Dec. 282. i*3 ; State v. Forsytlie, 89 Mo. 067 2 Storey r. State, 71 Ala. 329 (1882) ; (]88()) ; s.c. 1 S. W. Hep. 834 ; People Simp.son v. State, 59 Ala. 1 (1877); v. Divine, 1 Edm. Sel. Cas. (N. Y.) 8.0. 31 Am. Rep. 1 ; Noles ?-. State, 20 594 (1848) ; State )•. Brandon, 8 Jones Ala. 31 (1855); s.c. 62 Am. Dec. 711; (N. C.) L. 403 (1802); s.c. Law. Harrison v. State, 24 Ala. 67 (1854) ; Insnn. 144 ; State r. McDonald, 4 s.c. 60 Am. Dec. 4-50 ; Carroll, y. Stale, .Tones (N. C.) L. 19 (1856); Wliite 23 Ala. 29 (1853) ; s.c. 58 Am. Dec. v. Territory, 3 Wash. Ter. .397(1888) ; 282; Johnson r. State, 17 Ala. 018 s.c. 19 Pac! Rep. 37. See People (1850); People r. HnnslicU. 10 Cal. v. Flanagan, 00 Cal. 2 (1881); s.c. 83 (1858); State v. Moore, 31 Conn. 44 Am. Rep. 52; Weston r. Common- 479 (1863); s.c. 83 Am. Dec. 159; wealth. 111 Pa. St. 251 (1885); s.c. Monroe v. State, 5 Ga. 85 (1848); Am. Cr. Rep. 430 ; 2 Atl. Rep. 191. Davison v. People, 90 111. 221 (1878) ; 3 Ayres v. State, 60 Miss. 709 (1883). McDaniel V. Stale, 16 Miss. (8 Smed. SEC. 185.] DEFENCES TO HOMICIDE. 213 felony thereon ; ^ but under no other circum.stance. Thus a vio- lent and forcible attempt on the part of the deceased to break into defendant's tobacco house in the night-time to remove a crop claimed by deceased, but which had not been divided, defendant denying his right to any of it, was met by defend- ant shooting and killing him with a single-barrelled fowling piece loaded with small shot, it was held to be justifiable homicide.^ In Storey v. State,^ however, it is said that the larceny of a horse, though made a felony by statute, does not justify the killing of the felon, though necessary to the recap- ture of the horse. A person will not be justified in taking life in preventing or repelling a mere trespass, although the trespass could not be prevented in any other way,^ even though done while act- ing under the advice of council that he had a legal right to protect or maintain his possession of the same.^ Thus a per- son will not be justified in shooting a highway commissioner who was attempting to pull down the defendant's fence.^ In White v. Territory *" it appeared that the deceased, claiming to be owner of certain land in the actual and peaceable occu- pancy of the defendant, armed himself and went u[)on the same to cut and take away the hay thereon ; that defendant then armed himself with a revolver and went to where the deceased was to prevent him from so doing and to warn him away, and in the affray that ensued killed him. The trial court charged that the act of the deceased was lawful, while the act of the defendant was unlawful, and that tho latter was guilty as charged ; this was held error on appeal, because the entry of the deceased was a trespass which the defendant had a right to resist. 1 People V. Flanagan, 60 Cal. 2 » 71 Ala. .329 (1882). (1881) ; s.c. 44 Am. Rep. 52; State 1-. * Harrison v. State, 24 Ala. 67 Moore, 31 Conn. 479 (1863); s.c. 8,3 (1854); s.c. 60 Am. Dee. 450 ; Carroll Aim. Dee. 159. See People r. Payne, v. State, 23 Ala. 28 (1853) ; s.c. 58 8 Cal. .341 (1857) ; Roach v. People, Am. Dec. 282. 77 111.25 (1875); Morgan v. Durfee, ^ Weston v. Commonwealtli, 111 69 Mo. 469 (1879); s.c. 33 Am. Rep. Pa. St. 251 (1885); s c. 6 Am. Cr. 508; Lilly r. State, 20 Tex. App. 1 Rep. 436 ; 2 Atl. Rep. 191. (1886) ; Parrish v. Commonwealth, " Davison i-. People, 90 111. 221 81 Va. 1 (1884). (1878). 2 Parrish v. Commonwealth, 81 Va. " 3 Wash. Ter. 397 (1888) ; s.c. 19 1 (1884). Pac. Rep. 37. 214 HOMICIDE. [chap. VII. Sec. 186. Same — Setting spring--g'uiis. — What a man may not do directly he may not do indirectly. A man may not, therefore, place instruments of destruction for the pro- tection of his property, where he would not be authorized to take life with his own hand for its protection. Thus a man may not set spring-guns ^ for the protection of his property ,2 and if he does and death results to any trespasser by reason thereof it is a criminal homicide.^ But to authorize a con- viction of assault with intent to commit a murder, a specific felonious intent must be proved ; and so where one plants such weapons with the general intent to kill trespassers and wounds a particular person, he cannot be convicted of assault with intent to commit murder. The intent to kill that parti- cular person alone must be shown and cannot be implied from the general conduct.^ It is said by the supreme court of Alabama in the case of Simpson v. State,^ that if, in the defence of property, other than the dwelling-house, life is taken with a deadly weapon, as here, a spring-gun, it is murder, although the homicide may be actually necessary to prevent the trespass. The law having defined the measure of protection of property and the force which may be employed in the defence thereof, neither the secrecy of the trespass not the frequency of its repetition enlarges the one or the other. But in the case of State v. Moore ^ the supreme court of Connecticut say that "In the absence of any statutory provision making it burglary to break and enter a shop in the night-season with intent to steal, and by the early strict rules 5f the common law, a man may not take life in prevention of such a crime. The habits of the people and 1 It has been said that the mere in this conntry, aside fron> the possi- act of settini? spring-guns is not of ble exception of Kentucky. See Gray itself unlawful, but that the person v. Combs, 7 J. J. Marsh (Ky.), 478 doing 80 may be responsible for inju- (18o-2) ; s.c. 23 Am. Dec. 431. ries caused thereby to individuals, and ^ Simpson v. State, 59 Ala. 1 may be indictable for the erection of (1877) ; s.c. 31 Am. Kep. 1. a nuisance if the public are thereby * See Hirston v. State, 54 Miss. 689 subjected to any danger. See State (1877); s.c. 28 Am. Kep. 392 ; Garnet V. Moore, 31 Conn. 479 (1863) ; s.c. v. State, 1 Tex. App. 605 (1877) ; s.c. 83 Am. Dec. 159. 28 Am. Rep. 428. 2 The common Law of England, ^ 59 Ala. 1 (1877) ; s.c. 31 Am. allowing the -owner of property to Rep. 1. erect or set spring-guns to protect it '' 31 Conn. 479 (1803) ; s.c. 83 Am. from trespassers, has not been adopted Dec. 159. SEC. 187.] DEFENCES TO HOMICIDE. 215 other circumstances have, however, so greatly changed since this rule was established that it is very questionable whether, in view of the large amount of property now kept in ware- houses, banks, and other out-buildings, it should not be held lawful to place instruments of destruction for the protection of such property. Breaking and entering a shop in the night- season with intent to steal is by our law burglary ; and the placing of spring-guns in such a shop for its defence would be justified if a burglar should be killed by them." Sec. 187. Homicide in making arrest. — An officer hav- ing a warrant of arrest is justifiable in killing one accused of felony if he resists or flies ; and also without a warrant, on probable suspicion founded on his own knowledge or the information of others.^ But the slayer must show a felony actually committed by the deceased, and that he avowed his object, and that the deceased refused to submit.^ In attempt- ing to disperse an unlawful assemblage, it is also justifiable to kill if necessary to arrest the offender.^ Where an attempted arrest is for an ordinary misdemeanor or in a civil action, life can only be taken by the officer where the person arrested 1 Clements i'. State, 50 Ala. 117 and others have no right to resist him (1873) ; Williams v. State, 44 Ala. in the performance of his duties as 41 (1870); State v. Roane, 2 Dev. constable; and when such an oflScer (N. C.) L. 581 (1828) ; State v. Ruther- is on trial under an indictmeilt for ford, 1 Hawks. (N. C.) L. 457 (1821) ; murder for killing one who had re- s.c. 9 Am. Dec. 058 ; State v. Garrett, sisted him while attempting to make Winst. (N. C.) L. 144 (1863) ; s.c. 84 an arrest, he should be treated as an Am. Dec. 359 ; Wolf v. State, 19 Ohio officer, and the instruction to the jury St. 248 (1869) ; United States v. should proceed on the theory that he Jailer, 2 Abb. U. S. 265 (1867) ; is one. State v. Dierberger, 90 Mo. United States v. Rice, 1 Hughes C. C. 369 (1886) ; s.c. 2 S. W. Rep. 286. 560 (1875) ; United States v. Travers - §tate v. Roane, 2 Dev. (N. C.) L. (Mass.) 2 Wheel. Cr. Cas. 490, 499, 58 (1828). 510 (1814) ; Reg. (,'. Hagan, 8 Car. & Asportation, through A country, of P. 167 (1837) ; s.c. 34 Eng. C. L. 670; property stolen in B country, is not Reg. V. Dadson, 2 Den. C. C. 35 the commission of a theft "in the (1850) ; 4 Bl. Comm. 180 ; 1 East presence or within the view " of one P. C. 298 ; 2 Hale P. C. 85 ; 1 Hale seeking without warrant to arrest the P. C. 498; 3 Co. Inst. 118, 220, 221. thief in A country, and consequently Under the Missouri Constitution, affords no justification for shooting article 14, § 6, requiring all ofiicers the thief upon his trying to escape under the authority of the state to arrest. Lacy v. State, 7 Tex. App. take an oath of oflSce, a deputy con- 403 (1880). stable regularly appointed, who has ^ Pond v. People, 8 Mich. 150 not taken the oath of office, is not an (1860). See 1 Hale P. C. 495. officer de jure, but is an officer de facto, 216 HOMICIDE. [chap. VII. resists by force, and so endangers the life or person of the officer as to make such killing necessary in self-defence.^ The light given an officer, having the custody of a prisoner convicted of a felony, to take life to prevent the escape of the prisoner, does not extend to an officer attempting to re-arrest an escaped penitentiary convict. He has only such authority as belongs to an ordinary peace-officer in making an arrest.^ Sec. 188. Homicide in resisting rescue. — The law does not clothe an officer with authority to judge arbitrarily of the necessity of killing a person who attempts to rescue a prisoner. He cannot kill unless tliere is necessity for it, and the jury must determine, upon the testimony, the existence or absence of the necessity.^ And where an officer arresting a person under such circumstances that it is his duty to take him immediately before the mayor of the town, proceeds to take him to the lock-up instead, he will not be justifiable in killing a person who attempts to rescue the prisoner, unless lie was acting, in making the arrest in that manner, according to his sense of right, and not merely under a pretext of duty.'^ Sec. 189. Honiicide in resisting arrest. — One who is guilty of a felony has no right to kill one who pursues him, if he has notice of the object of the pursuit, whether the pur- suer be an officer or a private person, or whether he be with- or without a warrant.* Thus the supreme court of California have said, in the case of People v. Pool,^ that the killing of an officer by one who has committed a felony, while the officer is in fresh pursuit of the offender, and when he suddenly comes upon him and, pointing a gun at him, says, " You are my prisoner ; surrender," is not justifiable on the ground that the officer did not in terms state his official character, or the cause of the attempted arrest. 1 Clements v. State, 50 Ala. 117 271; 1 Hale P. C. 481 ; 1 Russ. on Cr. (1873) ; State v. Oliver, 2 Houst. (5tli Encr. ed.) 643. (Del.) 585 (1855) ; Adams v. State, ^ Wright v. State, 44 Tex. 645 72 Ga. 85 (1883); State v. Garrett, (1870). Winst. (X. C.) L. 144 (1863) ; s.c. 84 " State y. Bland, 97 N.C. 438 (1887) ; Am. Dec. 359; Rencau v. State, 2 s.c. 2 S. E. Rep. 460. Lea (Tenn.) 720 (1879); s.c. 2 Am. * People c. Pool, 27 Cal. 572 (1865) ; Cr. Rep. 624 ; United States v. Jailer State v. Mowry, 37 Kan. 369 (1887) ; of Fayette County, 2 Abb. U. S. 265 s.c. 10 Cr. L. Mag. 23 ; 15 Pac. Rep. (1867) ; Forstcr's Case, 1 Lew. C. C. 282. 187 (1825) ; 1 East P. C. 302; Fost. & 27 Cal. 572 (1865), SEC. 189.] DEFENCES TO HOMICIDE. 217 Every person has a right to resist an unhiwful arrest, or an arrest unhiwfully violent and dangerous, both wheii he is arrested and after he is in custody ; ^ but the resistance must not be in enormous disproportion to the injury threatened. He has no right to kill to prevent a mere trespass whicii is unaccompanied by any innninent danger of great bodily harm, or felony, and which does not produce in his mind a reason- able belief of such danger.^ In determining the culpability of a homicide committed in resisting a supposed unlawful arrest, the lawfulness of the arrest, and not the information of the slayer respecting its legality, is the criterion in con- nection with the cliaracl^r of the means used to effect the arrest, upon the one hand, and those used to resist it, upon the other.3 A person has a right to resist an unlawful arrest with such force * as may be necessary to prevent the attempted arrest ; and this right of resistance continues throughout the unlaw- ful detention, and may be exercised not only by the person detained, but by another in liis behalf ; and a homicide result- ing therefrom is not culpable.^ Thus in Dyson v. State ^ A and B, his brother, were peaceably walking together, when C rushed u[) with a drawn pistol, and, with oaths and violence, attempted illegally to arrest A and drag him before a sheriff. A resisted, a scuffle ensued, C's pistol was discharged, and B drew a pistol and killed C. The court held that if it reason- ably appeared to B that it was necessary to kill C in order to liberate A, the homicide was a justifiable one. But where one merely announces his intention of arresting a person, such person is not justified in shooting him, although the 1 Seams v. State, 84 Ala. 410 s Alford v. State, 8 Tex. App. 545 (1887); s.c. 4 So. Rep. 521; Nobles (1880). V. State, 2(5 Ala. .31 (1855) ; Wriglit v. * A person guilty of a misdemeanor, Commonwealth, 85 Ky. 123 (1887); and fired at by a policeman while s.c. 9 Cr. L. Masj. 331 ; 2 S. W. Rep. avoiding arrest, may repel suoli at- 904; State v. Underwood, 75 Mo. 230 tack, in self-defence, by returning the (1881); James v. State, 44 Tex. 314 fire; and if in so doing he kills the (1875); Tiner v. State, 44 Tex. 128 officer, such killing is not necessarily (1875); Dyson r. State, 14 Tex. App. unlawful. Tiner i-. State, 44 Tex. 128 454 (1884); Alford v. State, 8 Tex. (1875). Compare James v. State, 44 App. 545 (1880). Tex. 314 (1875). 2 Noles V. State, 20 Ala. 31 (1855) ; ^ Alford v. State, 8 Tex. App. 545 State V. Underwood, 75 Mo. 230 (1880). (1881), e 14 Tex. App. 454 (1884). 218 HOMICIDE. [chap. VIL former's official character is not known to tlie latter, and although, in fact, the arrest would, be unwarrantable. Other- wise, however, if the officer attempted to draw his pistol and called upon a third person to shoot defendant.^ In Wright v. Commonwealth ^ a party of armed men went in the night-time to defendant's house to arrest E., an inmate, on the charge of committing a misdemeanor, without any warrant for his arrest. After breaking down the door and firing into the house the party withdrew a short distance and stopped. On the trial it was held that the owner of the house and all the inmates, including E., had the right to resist the breaking in with all the forc^ necessary to prevent it, even to taking the life of those present aiding and assisting, as well as those actually breaking and entering ; and that after the withdrawal of the party the owner was not required to flee from his dwelling, but has still the right to fire on any member of the party whom he believed, from all the circum- stances, was about to again forcibly re-enter his house or to fire into it. Sec. 190. Killing- officer dispersing- public meeting — • The Anarchists' Case. — While all persons have a right law- fully and peaceably to meet and assemble for any lawful pur- pose, yet the mere fact that an assembly, whether its manner or object be lawful or otherwise, is ordered by officers of the law to disperse, cannot afford any excuse or justification for the wilful killing of such officers, or any of them.'^ In the famous Anarchists' Case the court say : " If the police officers had improperly intruded upon the meeting in question, such intrusion would have furnished no justification for the attack hereinafter mentioned. Persons injuriously affected by such improper intrusion or illegal dispersion had their remedies at law for damages sustained, for they could have demanded an investigation before the proper authorities, and, upon proving their charges, could have obtained the dismissal of officers guilty of infringement upon the rights of citizens. We can- 1 State V. Underwood, 75 Mo. 230 Case), 122 111. 1 (1887); .s.c. 3 Am. (1881). St. liep. 320; 9 Cr. L. Mag. 829; 2 85 Ky. 123 (1887); s.c. 9 Cr. L. Am. Cr. Rep. 570; 12 N. E. Rep. Mag. 331 ; 2 S. W. Rep. 904. 8G5; 17 N. E. Rep. 898. ^ Spies V. People (Anarchists' SEC. 192.] DEFENCES TO HOMICIDE. 219 not say, however, that in view of all the facts and circum- stances surrounding the occasion, the police officers were justly chargeable with exceeding their authority in the prem- ises. ... A rumor had come to their headquarters tliat it was the intention of parties at the . . . meeting to proceed to some neighboring freight-house, where non-union laborers were employed, and blow them up. In addition to this, it was reported to the officer in command of the force . . . that the defendant, Fielden, who was then speaking, had just used the following language : ' You have nothing more to do with the law except to lay hands on it and throttle it until it makes its last kick. . , . Keep your eye upon it, kill it, stab it, do everj'thing you can to wound it,' and that the use of these words had produced great excitement, and caused noisy demonstrations." Sec. 191. Homicide because reward offered for death. — In time of peace no person, who is not guilty of a felony, can lawfully be deprived of life, because of a reward offered for his death. Thus the supreme court of Minnesota have held that it is no justification of the killing of an Indian, in time of peace, that a state officer had issued a proclamation offering a reward therefor.^ Sec. 192. Homicide in defence of a woman's chastity. — While homicide committed under the passion caused by the knowledge of criminal intimacy with a female under the protection or control of the slayer is not altogether excusable, yet it may be so, under some circumstances, when committed to prevent such criminal intimacy, or a criminal assault. Thus a man may justifiably slay another if he have reasonable ground to apprehend a design to commit a felony on his wife.^ Tt is error, therefore, to instruct the jury that if the deceased was killed by the defendant when there was no immediate danger to his wife, it was manslaughter, for the statute expressly gives the man the benefit of his apprehen- sion. ^ If the husband shoot one who has attempted the seduction of his wife, it is for the jury to say whether the act be not justifiable under the statute. That the husband had 1 State y. Gut, 13 Minn. 341 (18G8). 3 Staten v. State, 30 Miss. 619 2 Hutch. Code, 957. (185G). 220 HOMICIDE. [chap. VII. a difficulty with the seducer at night when he discovered the attempt, and shot him the next morning when he came down and sat by the wife at breakfast, does not make the shooting- less justifiable.^ In Cloud V. State,^ there being evidence of the deceased's criminal intimacy with the defendant's wife ; that the defend- ant had frequently appealed to him to let her alone ; that the deceased had repeatedly followed her up, and had just before the shooting gone up a dark alley with her on his arm, it was held error to refuse an instruction that if the killing was necessarily committed to prevent the deceased having criminal intercourse with the defendant's wife, it was for the jury to say whether the killing comes under the Georgia statute,^ which, after enumerating various causes, enacts that all other in- stances standing on like footing of reason and justice shall be justifiable. But homicide in defence of a woman's chastity is not justi- fied by a belief that the deceased had been using fraudulent means, as bj'^ administering drugs, to effect a seduction not accomplished at the time of the killing.* The supreme court of Michigan say in People v. Cook^ that while the law justi- fies a homicide when committed in defence of the chastity either of ourselves or relations , and while it is the duty of every one who sees a felony attempted by violence to prevent it if possible, even to taking life if necessary to accomplish that purpose,*^ yet the felony in either case must be a forcible one. The court continue : '' Blackstone says the English law justifies a woman killing one who attempts to ravish her, and so, too, the husband or father may justify killing a man who attempts a rape on his wife or daughter , but not if he takes them in adultery by consent, for the one is forcible and felonious, l)ut not the other. The principle, he ' says, which runs through all laws seem to be this : That where a crime in itself capital is endeavored to be committed by force, it is lawful to repel that force ])y the death of the party attemj)t- 1 Biggs V. State, 29 Ga. 720 (1800); ^ People v. Cook, .39 Mich. 230 s.c. 76 Am. Dec. 630. (1878) ; s.c. 33 Am. Hep. 380. 2 81 Ga. 444 (1888) ; s.c. 11 Cr. L. ^ 39 Mieh. 230 (1878) ; s.c. 33 Am. Mag. 116 ; 7 S. E. l^ep. 641. ' Rep. 380. . 3 Ga. Code, §§ 4331, 4334. " See Pond v. People, 8 IMieli. 177 (1860) ; 4 Bl. Comm. 181. SEC. 193.] DEFENCES TO HOMICIDE. 221 iug. It is not claimed that any direct force was attempted in this case, but that the felony intended was to be accom- plished by the assistance of drugs administered or to be administered, and that where the power of resistance is thus overcome, and advantage thereof taken to violate her person, the act would be rape, and for such purpose the law would conclusively presume that sufficient force was used, at the time intercourse took place, so to characterize the act. The present case, however, falls short of coming within the principles which would justify the taking of life. The utmost that can be here said is, that the deceased had used and was likely to use fraudulent means, by administering drugs, to excite the passions,' or overcome the resistance he otherwise would have been sure to encounter, in order to accomplish his purpose. So far as he had then gone, even conceding all tliat is claimed, fraudulent and not forcible means had been resorted to, which would not create that necessity for immediate action on the part of the accused, by taking of life, to prevent an attempted forcible felony. Ample time and opportunity existed to enable the accused to resort to other available and adequate means to prevent the anticipated injury. The evil threatened could have been prevented by other means within the reach and power of the accused. There was no such immediate danger, nor would the facts warrant the apprehension of such immediate danger, as would justify a resort to the means adopted." Sec. 193. Killing one guilty of adultery with slayer's wife. — From the most ancient times the crime of adultery has been looked upon as one calculated to palliate if not justify or excuse the act of the outraged husband in slaying the violator of his marital rights. By the laws of Solon, the Athenian lawgiver, any one might kill an adulterer, where lie was found in the act ; ^ and the same was true by the Roman Civil Laws, if the adulterer was found in the husband's house; and also b}' the laws of the ancient Goths ;^ but by the common law such a killing is not ranked as a justifiable homicide, but manslaughter.'^ It is, however, the lowest 1 1 Plutarch's Lives (Clough's trs.) ^ g^e State v. Harman, 78 N. C. 190. 515 (1878). 3 1 Hale P. C. 486. 222 HOMICIDE. [chap. vii. degree of it, for the law pays so much regard to human frailty as not to put a hasty and deliberate act upon the same footing with regard to guilt, and therefore in such a case the court directed the burning in the hand to be gently inflicted, because there could not be a greater pro vocation. ^ It is held by the supreme court of Georgia in the case of Bies's V. State,^ that if a man takes the life of another who attempts the seduction of his wife, under circumstances of gross and direct aggravation, it is for the jury to find whether the case stands upon the same footing of reason and justice, as other instances of justifiable homicide enumerated in the penal code of that state ; also, that where the injured hus- band meets one, the next morning, who has attempted, over night, the violation of his marriage bed, and fires upon him, it is right and proper to give in evidence the previous occur- rence as a justification or excuse for the act. In Staten v. State,^ the supreme court of Mississippi held that a person may justifiably slay another, if he have reasonable ground to apprehend a design on the part of the latter to commit a felony, or do some great personal injury to his wife, and there shall be imminent danger of such design being accom- plished; and that this right of defence extends not only to the life of the wife, but to her chastity also. While the killing of a person taken in the act of adultery with the slayer's wife is manslaughter at common law, yet there are some statutes which excuse it altogether. Thus the Texas Penal Code makes homicide justifiable when committed by the husband on one " taken in the act of adultery " Avith the wife, provided the killing takes place before the parties to the act of adultery have separated.* Sec. 194. Homicicle from necessity. — Homicide from necessity may be defined as the killing of one of two or more ^ State V. Harnian, 78 N. C. 515 lowed and found his corn-pen door (1878). See Manning's Case, Ld. open. His wife came out and said Raym. 212 (1<)72) ; 4 Black. 101-2. no one was there, then A. came out, - 2!) Ga. 72:3 (18G0). and tiie husband shot lum. The court 3 30 Miss. 010 (185(5). hehl that the case was within the * A husband suspected his wife Texas Penal Code. Price v. State, and A. His wife left his house one 18 Tex. App. 474 (1885) ; s.c. 51 Am. night, and soon afterwards he fol- Rep. 322 ; 6 Am. Or. Rep. 385. SEC. 195.] DEFENCES TO HO^nCIDE. 223 persons b}^ others, where it is apparent or extremely probable that the lives of all cannot be saved.^ Homicides of this character can only be excused in cases of the direst necessity, and only when the life of one must be sacrificed. In such cases as shipwreck and extreme peril resulting therefrom, seamen have no right to sacrifice the lives of passengers for the sake of preserving their own ; but all occupy like posi- tions, and a decision by lot is to be resorted to, unless the peril is so instant and overwhelming as to leave no choice of means and no moment for deliberation.^ Thus if two ship- wrecked persons get upon the same plank, and one of them, finding the plank not able to save them both, thrust the other from it, and thereby he is drowned, the homicide is excusable ; ^ but if there be time for any impartial choice of the persons to be sacrificed, such choice must be made.2 In the case of United States v. Holmes,^ a vessel, of which defendant was a seaman, was wrecked, and the passengers and crew took to the boats as the only means of safet3^ The boat which carried defendant being heavily laden, and the waves running high, it became apparent that it was in great danger of sinking, unless its load was lessened ; and defend- ant, together with the (>tlier sailors, proceeded to throw overboard passengers, until it appeared that sufficient weight had -been removed. It was held that the choice of those whose sacrifice was necessary to the safety of the others should have been made by lot ; and the defendant was con- victed under the indictment, which was for manslaughter, and sentenced to a light imprisonment. Sec. 195. Same — The Migrnonnette Case. — In- the now famous jMignonnette Case ^ two sailors were on trial for the homicide of a boy, when all three were starving in a boat at sea. The court, in charging the grand jury, said: "It is impossible to say that the act of Dudley and Stephens was an act of self-defence. Parker, at the bottom of the boat, 1 See 4 Bl. Comm. 186; Whart. 3 4 bI. Comm. 186. Horn. (2d cd.) 558; 1 Whart. Cr. L. * 1 Wall., Jr., C. C. 1 (1842). (9th ed.) § 511 ; Can. II, Dist. I, de ^ Reg. v. Dudley, L. R. 14 Q. B. Consecrat. Div. 273 (1884) ; s.c. 5 Am. Cr. Rep. 2 United States v. Holmes, 1 Wall., 559; 6 Cr. L. Mag. 361 ; 31 Alb. L. Jr., C. C. 1 (1842). J. 36. 224 HOMICIDE. [chap. VII. was not endangering tlieir lives b}^ an}- act of his. The boat could hold them all, and the motive for killing him was not for the purpose of lightening the boat, but for the purpose of eating him, which they could do Avlien he was dead, but not while living. What really imperilled their lives was not the presence of Parker, but the absence of food and drink. It could not be doubted for a moment that if Parker was possessed of a weapon of self-defence, — say, a revolver, — he would have been perfectly justified in taking the life of the captain, who was on the point of killing him, which shows clearly that the act of the captain was unjustifiable. It may be said that the selection of the boy — as indeed Dudley seems to have said — was better, because his stake in society, having no children at all, was less than theirs ; but if such reasoning is to be allowed for a moment, Cicero's test is that under such circumstances of emergency the man who is to be sacrificed is the man who would be the least likely to do benefit to the republic ; in which case, Parker, as a young man, might be likely to live longer, and be of more service to the republic than the others. Such reasoning must be always more ingenious than true. Nor can it be urged for a moment that the state of Parker's health, which is alleged to have been failing in consequence of his drinking the salt water, would justify it. No jjerson is permitted, according to the law of this country, to accelerate the death of another. Besides, if once this doctrine of necessity is to be admitted, why was Parker selected rather than any of the other three ? One would have imagined that his state of health, with the misery in which he was at the time, would liave obtained for him more consideration at their hands. However, it is idle to lose oneself in speculations of this description. I am bound to tell you that if you are satisfied that the boy's death was caused or accelerated by the act of Dudley, or Dudley and Stephens, this is a case of deliberate liomicide, neither justifiable nor excusable, and tlie crime is murder, and you, therefore, ought to find a true bill for murder against one or l)oth of the pi'isoners." ^ 1 The clef cndnnts were indicted and commuted to imprisonment for a convicted of murder and sentenced to period of six months, be hanged ; but their punishment was SEC. 198.] DEFENCES TO HOMICIDE. 225 Sec. 196. Homicide from eominilsion. — "While the prin- ciple that an act done involuntarily and under duress or com- pulsion places no responsibility upon the person so doing it, but only upon the person commanding it to be done, applies to crimes of homicide as well as all other offences, yet the mere fear of threatened violence cannot excuse a man for a homicide at the instance of another man.i And the same is true where the slayer is under the lawful authority of the person committing the act of killing, for he is bound to obey oidy the lawful orders of his superior. But the wilful killing of a soldier by the sergeant of the guard, while on his duty, is not necessarily a justifiable homicide, because a soldier is bound to obey only the lawful orders of his superior officers, and an order of a superior military officer to an inferior will not, of itself, justify the wilful killing of another.^ It is said, however, in the case of United States v. Clark,^ that if a homicide be committed liy a military guard without malice, and in the performance of his supposed dut}^ as a soldier, such homicide is excusable, unless it was manifestly beyond the scope of his authority, or was such that a man of ordinary sense and understanding would know that it was illegal. Sec. 197. Existence of war. — The existence of war is no excuse for a homicide, unless both the slayer and the slain be in a state of actual open warfare at the time of its commis- sion.* Thus the plea of an Indian war cannot avail to secure immunity for acts of treachery and murder committed by individual Indians belonging to tribes not engaged in the war, living among the whites, and in a part of the country not involved in hostilities.^ In the case of State v. Gut,^ upon the trial of a person charged with murder, it was held to be no defence that the deceased belonged to a tribe of Indians with whom war existed, the deceased being a pris- oner at the time. Sec. 198. Homicide by accident and mistake. — No guilt attaches to a person who, when doing a lawful act, uncon- 1 Reg. V. Tyler, 8 Car. & P. G16 3 31 Fed. Rep. 710 (1887). (1838) ; s.c. 3-4 Eng. C. L. (uncon- * See supra, § 19, and eh. Murder, densed ed.) 923, (condensed ed.) 553. ^ jim v. Territory, 1 Wash. Tr. 76. 2 United States v. Carr, 1 Wood C. ^ 1.3 Minn. 3il (18G8). C. 480 (1872). 15 226 HOMICIDE. [chap. Vil. sciously and non-negligently kills another.^ Thus where a person is indicted for murder in the first degree, and on the trial there is evidence tending to show that the deceased came to his death from the discharge of a pistol, at the time in the hands of the defendant, hut which pistol was not intention- ally pointed or aimed at the deceased by the defendant, or voluntarily discharged by him, but that these facts were entirely accidental, and without fault on the part of the defendant, and while he was not in the commission of an un- lawful act, it is the duty of the court, on the request of the defendant, to charge the jury that if such a state of the case was shown, he cannot be found guilty of any offence under said indictment.^ If one points a loaded gun at another under circumstances which would not justify shooting him, and the one aimed at seizes and struggles for it to save himself from the menaced injury from it, and in the struggle the gun is accidently dis- charged, causing the death of the person aimed at, the' one pointing the gun cannot claim that the homicide was excusa- ble, although it would be otherwise if the circumstances Avould justify the shooting.^ Thus it has been held that where a party points a pistol at another in an angry manner, and the pistol goes off, causing death, there is nothing to warrant a plea of accidental killing.* But in Aaron v. State/* where R. and J. quarrelled, J. drew a knife, and R. drew a pistol, and while his eyes were fixed on J., who had advanced toward him, the pistol was discharged accidently, and killed a bystander, who had been restraining R. before he drew the pistol, but had released him, the supreme court of Georgia on appeal held that tlie homicide was excusable. The general rule that one defending himself from bodily harm apparently threatened by anothel- is not liable for acci- 1 State V. Dutjan, 1 Houst. Cr. Cas. L. Mn Anderson v. State, 20 Fla. 381 2 Harris' Cr. L. 345. See Swallcy (1883). V. People, 116 111. 247 (1886) ; s.c. 4 * State v. Hopper, 21 Mo. App. 510 N. E. Kep. 379; State i'. Hawks, 38 (1886). La. An. 468 (1886) ; State v. Hopper, 21 Mo. App. 510 (1886). 255 236 HOMICIDE. [chap. Vlll. In computing the running of the statute the fractions of a day will not be observed, the rule being to exclude the first day and include the last.^ Thus where the statute prescrib- ing a two years' limitation, and the offence having been com- mitted in March, 1880, the indictment was found in April, 1882, the judgment of conviction was arretted and the pris- oner discharged ; ^ but where a crime was committed Decem- ber 13, 1878, and an indictment was found therefor December 13, 1880, it was held good under a two years' limitation.^ In Swalley v. People* the state's attorney entered a nolle pro- sequi to an indictment, and the court ordered the defendants therein named to be discharged ; the manner of disposal of such indictment amounted to a setting aside of the proceed- ings under it, and comes within the saving clause of a sec- tion limiting a second indictment for the same offence. Sec. 220. Same — Statute must be pleaded. — The stat- ute of limitations must be specially pleaded,''^ because the law does not allow that question to lie raised under a motion in arrest of judgment. Limitation proper is a matter of de- fence and should be pleaded or given in evidence by the accused. The supreme court of the United States say, in the case of United States i\ Cook,^ that "argument to show that a demurrer to an indictment admits every matter of fact which is well pleaded is unnecessar}', as the proposition is not denied ; and inasmuch as the offence is well alleged in each of the counts to which the demurrer applies, it is difficult to see upon Avhat ground it can be contended that the defendant may, by demurrer, set up the statute of limitations as a de- fence, it appearing beyond all doubt that the act defining the offence contains neither an exception nor a proviso of any kind. Tested by the princi[)les herein suggested, it is quite clear that such a theory cannot be supported ; but it must be admitted that decided cases are referred to which not only countenance that view, but adjudge it to be correct. Some of the cases, however, admit that the judgment cannot be 1 Savage 1-. State, 18 Fla. 970 (1882). < IIG III. '247 (1880); s.c. 4 N. E. 2 Anderson v. State, 20 Fla. 08I Rep. .379. (188.3). 5 State r. Tlirasher, 79 Me. 17 ■'Savage v. State, 18 Fla. 970 (1887) ; s.c. 7 Atl. Kep. 814. (1882). « 84 U. S. (17 Wall.) 108 (1872) ; bk.21, L. ed. 538. SEC. 222.] PROSECUTION TO BE INSTITUTED. 257 arrested for siicli a defect, if it appears that the statute of limitations contains any exception, as the presumption in that state of the case would be that evidence was introduced at the trial which brought the defendant within some one of the exceptions."^ Sec. 221. Same — When statute ceases to rim. — The statute of limitations against the prosecution for a crime does not run while a prosecution is pending.'^ Thus it has been held that where a prosecution is dismissed because the indict- ment is not signed and indorsed as required by statute, an entry of record may be mada stating the facts and ordering another indictment to be found ; and a new indictment being found, the time which elapsed between the finding of the two indictments must be deducted in computing the time under the statute.^ Neither will the statute of limitations run against the state in favor of one charged with a felony who shall '' flee from justice." It is not necessary to constitute one a fugitive from justice, within the meaning of the statute, that he should leave the state ; one who conceals himself to avoid arrest is a fugitive from justice, although such conceal- ment be upon his own premises.* Sec. 222. In prosecution for murder. — ^Murder is one of the gravest crimes known to the law, and, consequently, no time is usually prescribed within which the charge against the offender must be preferred, but he is continually liable to be apprehended and punished. There are, however, occasionally exceptions to this rule, but generally they limit the prosecu- tion of the lower degrees of the crime.^ An accessory before the fact to the crime of murder is guilty of murder, and, therefore, the time for the prosecution of his offence is not 1 SeeStater. Rust, SBlackf. (Iml.) an indictment for murder, cannot be 195 (1846); State v. Hobbs, 39 Me. sustained where the offence was not 212 (1855); People v. Santvoord, 9 prosecuted within two years next after Cow. (N. Y.) 660 (1827). it was committed, as provided in 2 Swalley v. People, 110 111. 247 Thomp. Fla. Dig. 490; Nelson r. State, (1886) ; s.c. 4 N. E. Kep. 379. 17 Fla. 195 (1879). In Louisiana the • 3 Smith V. State, 79 Ala. 21 prescription of one year for prosecu- (1885). tion for murder runs from the death * State V. Harvell, 89 Mo. 588 of the deceased, and not from the. (1886) ; s.c. 1 S. W. Eep. 837. woundinsr of or the arrest. State i'. 5 In Florida a conviction of murder Taylor, 31 La. An. 851 (1879). in the third degree, although had on 17 258 HOMICIDE. [chap. VIII. limited in the absence of a limitation of the prosecution for murder.^ Sec. 223. In prosecutions for manslaug^hter. — Statutes limiting the time within which to charge a person with the crime of manslaughter are found in many of the states ; ^ and a conviction for that offence will not be sustained by an in- dictment found after the expiration of the prescribed time, dating from the commission of the offence, even though the indictment charges the crime of murder, for which offence the time of prosecution is not limited.^ Thus it has been held that a conviction for manslaughter, though had on an indictment for murder, cannot be sustained unless the indict- ment was presented within the time limited by the statute under which the prosecution was had.* And in State v. Free- man ^ a conviction of manslaughter on an indictment found beyond the statutory limit within which the offence is per- mitted to be prosecuted was set aside, altliough the courts had been closed, on account of the war, for a part of the time, there being no averment to that effect in the indictment. 1 Peoples. Mather, 4 Wend. (N.Y.) 69 (1805); People v. Burt, 51 Mich. 229 (1830) ; s.c. 21 Am. Dec. 122. 199 (1883) ; s.c. 16 N. W. Rep. 378; 2 People V. Miller, 12 Cal. 291 Riggs v. State, 30 Miss. 635 (1856) ; (1859) ; State v. Freeman, 17 La. An. White v. State, 4 Tex. App. 488 69 (1865); People v. Burt, 51 Mich. (1879). 199 (1883) ; s.c. 16 N. W. Rep. 378; •* State v. Freeman, 17 La. An. 69 Riggs V. State, .30 Miss. 635 (1856) ; (1865) ; Riggs v. State, 30 Miss. 6.35 White V. State, 4 Tex. App. 488 (1856) ; White v. State, 4 Tex. App. (1879). 488 (1879). 3 People i;. Miller, 12 Cal. 291 & 17 La. An. 69 (1865). (1859) ; State i;. Freeman, 17 La. An. CHAPTER IX. JURISDICTION. Sec. 224. Venue. Sec. 225. Jurisdiction as to place — Of the state courts. Sec. 226. Same — At common law. Sec 227. Same — Of the federal courts. Sec 228. Offences commenced in one jurisdiction and completed in another. Sec 229. Jurisdiction as to the person. Sec. 230. Jurisdiction as to the court. Sec. 224. Venue. — To support a conviction of homicide it is as important to prove that the offence was committed in the county where it is charged to have been committed as to prove that the defendant committed it ; the venue must be established by either direct or indirect testimony, and cannot be inferred. Where it is established by neither, this in itself is fatal to the conviction.^ Thus, in the case of Reg. V. Moore,2 the prisoner was convicted at Quebec of man- slaughter. He and the deceased were serving on board a British ship, and the latter died in the district of Kamouraska, where the ship was loading, from injuries by the former on board the ship on high seas. On reserved case it was held that, as the deceased had been hurt upon the sea, and the death happened in another district, the defendant should have been tried there, and not in the district of Quebec, and that for this reason the conviction was wrong. Sec. 225. Jurisdiction as to place — Of the state courts. — The question as to the jurisdiction over a homicide com- mitted in a particular place is governed by the same rules that apply to all other felonies in the jurisdiction where the 1 State V. Babb, 76 Mo. 503 (1882) State V. Burgess, 75 Mo. 541 (1882) State V. Hartnett, 76 Mo. 251 (1881) Bench in appeal for a change of venue on an indictment for manslaughter rejected on ground of want of juris- State V. McGinniss, 74 Mo. 245 diction. (1881) ; State v. Hughes, 71 Mo. 633 ^ g Queb. L. R. 9 (1881) ; s.c. 11 (1880) ; State v. Hopper, 21 Mo. App. Rev. Leg. L. C. 180. 510 (1886). Application to Queen's 259 260 HOMICIDE. [chap. IX. question is raised. Where the political authorities of a state have actually claimed and exercised jurisdiction over a par- ticular locality in which a homicide has been committed, the courts of the state are therel^y concluded, and will respect such decision, and act accordingly, without questioning the validity of such claim.^ Where a question is raised as to whether the precise locality in which a homicide, alleged to have been committed, is within the jurisdiction of the court, the judge before whom the question is raised may, in addition to the matters of which he will take judicial notice, — such as legislative enactments, ancient charters, and geo- graphical 23osition, — refresh his recollection and guide his judgment by reference to the records of the courts in the county where he sits ; general histories, written by deceased authors of established reputation; and the records of the census.'of the inhabitants of the county taken under tlie laws of the United States by its officers.^ Whenever a homicide is committed partly in and partly out of the jurisdiction where the charge is made, the power to punish it depends upon the question whether so much of the act as operates in the county or state in Avhich the offender is indicted and tried, has been declared to be punishable by the law of that jurisdiction.^ A statute providing a punishment for murder or manslaugliter in cases Avhere the wound was inflicted or the poison administered at a place out of the state, but the death ensues, and the accused is brought to trial, within the state, is valid.3 Under such a statute it has been held that a British subject may be convicted of manslaughter, although the acts causing the death were committed on board a British vessel on the high seas, provided the injured person died within the state where the accused is brought to trial ; and no objection to the jurisdiction of state courts, in such a cause, arises from the fact that the acts of violence were 1 State V. Wagner, (31 Me. 178 It has been said that if a person (1878). is stal)bed in Virginia and dies of his 2 Commonwealth v. Macloon, 101 wounds in another state, his assailant Mass. 1 (1809) ; s.c. 100 Am. Dec. 81). cannot be tried for the murder in an7 3 Commonwealth v. Macloon, 101 county in Virginia, but he may be Mass. 1 (1869); s.c. 100 Am. Dec. tried for stabbinti in the county where 89; Tyler v. People, 8 Mich. 320 the l)low was inflicted. Commonwealtli (I860). i\ Linton, 2 Va. Cas. 205 (1820). SEC. 227.] JURISDICTION. 261 committed on the high seas. It is sufficient to render the perpetrator amenable to theP justice of the state for the homi- cide that the person killed was, at the time of his death, within the jurisdiction and protection of the state under whose laws the person who killed him was indicted.^ Sec. 226. Same — At common law. — At common law it was never well settled whether, when the death took place in a county other than the one where the injury was inflicted, the offence could be prosecuted in either county; but the weio-ht of authority seems to have favored the opinion that the jurisdiction attached only in the county where the blow was inflicted.2 g^t this doubt has been resolved in some states by statutory provision that a homicide so committed may be prosecuted in either county.^ Thus it was, at an early day, provided in Massachusetts,^ that where the cause of death happened in one county, and the death occurred in another, an indictment therefor might be found in the latter ; and this statute has been held not to be repugnant to the declaration in the constitution that " in criminal prosecutions verification of facts in the vicinity where they happen, is one of the greatest securities of the life," &c., of the citizens.^ And the same doctrine has been laid down in Wisconsin^ and elsewhere. Sec. 227. Same— Of the federal courts. — The jurisdic- tion of the federal courts extends to all homicides committed on the high seas ; or in any river, haven, basin, or other like place out of the jurisdiction of particular states ; or in any 1 Commonwealth v. Maoloon, 101 657'(1849); East P. C. 361; 1 Hale Mass. 1 (1869) ; s.c. 100 Am. Dec. 89. P. C. 426. 2 See Green v. State, 06 Ala. 40 ^ gee Anilier v. State, 106 Ind. 426 (1880) ; s.c. 41 Am. Rep. 744; People (1880) ; s.c. 7 N. E. Rep. 225; Nash r. Gill, 7 Cal. 356 (1857) ; Archer v. r. State, 2 G. Green (Iowa) 280 State, 106 Ind. 426 (1886) ; s.c. 7 (1849) ; Commonwealth v. Parker, 19 N. E. Rep. 225; Commonwealth \. Mac- Mass. (2 Pick.) 549 (1824); Dula v. /oo», 101 Mass. 1 (1869); s.c. 100 Am. State, 8 Yerg. (Tenn.) 511 (1835); Dec. 89; Commonwealth v. Parker, State c Pauley, 12 Wis. 537 (1860). 19 Mass. (2 Pick.) 550 (1824) ; Tyler * Mass. Stat. 1795, c. 45. r. People, 8 Mich. 320 (1860) ; State = Commonwealth v. Parker, 19 r. Gessert, 21 Minn. 369 (1875) ; Steer- Mass. (2 Pick.) 549 (1824). man v. State, 10 Mo. 503 (1847) ; '' State v. Pauley, 12 Wis. 537 Hunter v. State, 40 N. J. L. (11 Vr.) (I860). See Archer v. State, 106 495, 547 (1878) ; s.c. 1 Cr. L. Mag. Ind. 426 (1886) ; s.c. 7 N. E. Rep. 64 ; Riley v. State, 9 Humph. (Tenn.) 225. 262 HOMICIDE. [chap. IX. fort, magazine, arsenal, dockyard, or other place or district of county under the sole and exclusive authority of the United States . ^ and the death, as well as the cause, must occur at the designated place. ^ Under the Act of Congress ^ providing for the punishment of murder, &c., committed upon the high seas, or in a river, haven, basin, or bay out of the jurisdiction of any state, it is not the offence committed, but the bay, &c., in which it is committed, which must be out of the jurisdiction of the state in order to give jurisdiction to the courts of the United States. The fact that the state could not punish the offence would make no difference, if the place was in its jurisdiction. Thus, murder committed on board a ship of war lying within the harbor of Boston is not cognizable in the circuit court of the United States.'* The defendant is amenable to the state courts alone. So also the courts of the United States have no jurisdiction under the act of April 30, 1790, over a manslauofhter committed on board a United States vessel in the river of a foreign country. Such a place is not on the high seas within the meaning of that section.^ And man- slaughter, committed by a moi'tal blow given on the River St. Clair, beyond the boundary line between the United States and the province of Canada, and within a county in said province, from which blow death ensued upon land, is not within the Crimes' Act of Congress of March 3, 1857, and the circuit court of the United States has no jurisdiction of the same.^ The United States circuit court has jurisdiction of a homi- 1 Const, of U. S., art. 1, § 8. See r. Peters, 53 Mass. (12 Mete.) .380 United States v. Holmes, 18 U. S. (5 (1847) ; Tyler v. People, 8 Mich. 320 Wheat.) 412 (1820) ; bk. 5 L. ed. 122 ; (I860). United States v. Pirates, 18 U. S. (5 2 United States v. McGill, 4 U. S. AVheat.) 184 (1820) ; bk. 5 L. ed. 64 ; (4 Dall.) 426 (1806) ; bk. 1 L. ed. 894. United States v. Wiltberger, 18 U. S. 3 Act 1790, § 8. See U. S. Rev. (5 Wheat.) 76 (1820) ; bk. 5 L. ed. 37 ; St. § 5339. United States v. Bevans, 16 U. S. * United States v. Bevans, 16 U. S. (3 Wheat.) 3-36 (1818) ; bk. 4 L. ed. (3 Wlieat.) 336 (1818) ; bk. 4 L. ed, 404 ; United States v. McGill, 4 U. S. 404. (4 Dall.) 426 (1806), bk. 1 L. ed. 894. 5 United States »-. Wiltberger, 18 United States r. Grush, 5 Mason C.C. U. S. (5 Wheat.) 76 (1820); bk. 5 290 (1829) : United States v. Clark, L. ed. 37. 31 Fed. Rep. 710 (1887;^ ; s.o. 10 Cr. '> See Tyler v. People, 8 Mich. 320 L. Mag. 59. See also Commonwealth (1860). SEC. 229.] JURISDICTION. 263 cide committed by one soldier upon another within a military reservation of the United ^tates.^ Sec. 228, Offences commenced in one jurisdiction and completed in another. — When any offence against the United States is begun in any one judicial circuit and com- pleted in another, it shall be deemed to liave been committed in either, and may be dealt with, inquired of, tried, deter- mined, and punished in either district, in the same manner as if it had been actually and wholly committed therein.^ Sec. 229. Jurisdiction as to the person. — A citizen of a foreign state or countr}- who is charged with the commission of a homicide is within the, jurisdiction of the court, and may be tried and punished in the same manner as a citizen of the state where the offence is committed. Thus it has been held by the New York courts that a homicide committed within the territory of the United States by a subject of Great Britain, in time of peace, ma}^ be prosecuted in our courts as murder, though avowed to be under the direction of the local authorities of Great Britain.^ But the soundness of this decision has been called in question and may be seriously doubted. Certain it is that Great Britain never acquiesced in this doctrine ; and it is not questioned but that a convic- tion of McLeod at the trial on the indictment would hav3 been followed by a declaration of war by Great Britain against the United States.* 1 Uniteii States v. Clark, 31 Fed. dian authorities to Navy Island to de- Rep. 710 (1887) ; s.c. 10 Cr. L. Mag. stroy the "Caroline." But not finding 69. her there, they proceeded to Schlosser, ^ U. S. Rev. Stat. (2d ed.) p. 139, where they found her at the dock; § 731. and after a brief conflict, in which an 3 People V. McLeod, 1 Hill (N. Y.) American, named Durfee, was killed, 377 (1841) ; s.c. 37 Am. Dec. 328. the steamer was captured, set on fire, * The facts in this celebrated case and conducted out into the stream, are as follows : A company of about Avhere she was left to drift down the seven hundred Canadians and Ameri- Falls of Niagara. McLeod was in- cans had seized Navy Island (which dieted for murder in Niagara county, belonged to Great Britain), and had but the venue was changed from that employed the "Caroline" for the county to the county of Oneida; and transportation of men, provisions, and the cause was tried at the Oneida ammunition from the town of Schlos- Court of Oyer and Terminer in the ser on the American shore to the month of November, 1841, and island. Near the close of the year McLeod was acquitted. See, foradis- 1837, on a very dark night, a body of cussion of this case, 27 Alb. L. J. 27; British troops was sent by the Cana- 37 Am. Dec. 363 ; 26 Wend. (N. Y.) 264 HOMICIDE. [chap. IX. It is said in Hunt v. State ^ that an Indian, a member of the "United States tribes," who commits a homicide not shown by the record to be within any Indian reserve, is not exempt from prosecution therefor in the state courts. Sec. 230. Jurisdiction as to court. — All homicides are usually triable by the same courts and in the same manner as are other felonies. Thus in New York a court of oyer and terminer has jurisdiction to try all cases of murder committed within the county ; and a murder committed by a soldier in the militar}^ services of the United States in time of war, in- surrection, or rebellion, forms no exception.^ But the courts of sessions in that state have no power to arraign a defendant and receive a plea to an indictment for murder.^ Under the new judicial system of Ohio original jurisdiction has not been given the district court to try cases of murder ; it has that jurisdiction only in such cases as are pending in the old supreme court.'* A prisoner under indictment in that state for murder in the first degree, has no right, under the new constitution, to elect to be tried in the district court, that court having no jurisdiction of capital offences.^ 663; 3 Hill (N. Y.) 635; 26 Am. 2 People v. Gardiner, 6 Park Cr. L. J. 236, 241 ; 1 Am. L. Mag. 348 ; 4 Cas. (N. Y.) 143 (1865). Law. Rep. 169 ; Lawrence's Wheaton ^ pp^pig ^ McCraney, 21 How. 1S9, etseq.; Webster's Works, vol. H., (N. Y.) Pr. 149 (1861). pp. 119, 120 ; vol. v., pp. 116, 120, 125, * Bobbins v. State, 8 Ohio St. 131 133; vol. VL, pp. 254, 266; Neilson's (1857); Parks v. State, 3 Ohio St. Life of Rufus Choate, chap, x., p. 173. 101 (1853). 1 4 Kan. 60 (1866). & Robbins v. State, 8 Ohio St. 131 (1857). CHAPTER X. PRELIMTNAKY EXAMINATION. Sec. 231. Right to preliminary examination. Sec. 232. By whom preliminary examination held. Sec. 233. Securing attendance and examining witnesses. Sec. 234. Effect of finding indictment on riglit to examination. Sec. 235. Where preliminary examination to be lield. Sec. 236. Same — Adjournment of examination. Sec. 237. Same — Keducing testimony to writing. Sec. 238. Waiver of preliminary examination. Sec. 239. Warrant of commitment. Sec. 231. Right to preliminary examination. — No per- son may be imprisoned upon a charge of felonious homicide except upon tlie warrant of a judicial officer, and after a judicial inquiry as to his probable guilt. Therefore, when a person is apprehended before an indictment is found against him, he is entitled to an immediate examination of the charge before a magistrate, whose duty it is to commit him to await the action of the grand jury, if there appear to be reason- able grounds for a belief of his guilt, and if not, to immedi- ately release him.^ It is thought that the riglit to a preliminary examination before a committing magistrate, or other officer, is one of which the defendant in a homicide case cannot be deprived,^ 1 See People v. McCurdy, 68 Cal. In Virginia an examining court 576 (1886); s.c. 10 Pac. Rep. 207; has no power to acquit a person, People V. Mellor, 2 Colo. 705 (1875) ; charged before them with murder, of Murphy v. Commonwealth, 11 Bush the murder with wliich lie so stands (Ky.) 217 (1875); Commonwealth v. charged, and to remand him to be McNeill, 36 Mass. (19 Pick.) 127 tried for manslaughter only ; and, if it (1837) ; Commonwealth v. Linton, 2 makes such discrimination, the pris- Va. Cas. 205 (1820); Bailey's Case, oner isnot thereby discharged, but may 1 Va. Cas. 2.58 (1798); Common- be indicted for murder in the superior wealth V. Myers, 1 Va. Cas. 188 court. Commonwealth ;-. Myers, 1 (1811) ; Ex parte v. Bollman, 8 U. S. Va. Cas. 188 (1811). See also, Sor- (4 Cr.) 75, 129 (1807) ; bk. 2 L. ed. rell's Case, 1 Va. Cas. 253 (1786) ; 554; United States v. Hand, 6 McL. Bailey's Case, 1 Va. Cas. 258 (1798). C. C. 274 (1854). ^ gge Kapalje's Crim. Proc. § 16. 265 266 HOMICIDE. [chap. X. and also that a defendant cannot be prosecuted by informa- tion until after examination and commitment by a magistrate ; but it does not follow that an information will be set aside for mere irregularities in the examination or commitment.^ In some jurisdictions, where a man is examined by the examining court for feloniously stabbing another, and re- manded for trial for that offence, and the party stabbed after- wards dies, the accused cannot be indicted for murder, without an examination for the murder.^ Sec. 232. By whom preliminary examination held. — Preliminary examinations are usually conducted by justices of the peace,^ or persons having the same general jurisdiction, such as mayors or police justices in cities,'* and United States commissioners in case the homicide falls within the jurisdic- tion of the federal courts.^ A coroner's inquest is in the nature of a preliminary examination, and that officer has power to commit persons of whose guilt the evidence adduced before him gives cause for reasonable belief in their guilt.'' The only duty or power of the examining magistrate or other officer in the performance of his office, is to determine whether it is a case on which the accused ought to be held for trial ;^ and the onjy issue to be tried is whether there is a prima facie case made out.^ If the accused admits that he committed the homicide, this is sufficient, without proof of the corpus delicti, to warrant his being held for trial.^ Sec. 233. Securing attendance and examining witnesses. — In order to secure the testimony of witnesses to the fact, 1 People V. McCurdy, G8 Cal. 576 Worms, 4 Blatchf. C C 332 (1859); (1886) ; s.c. 10 Pac. Rep. 207. United States v. Bloonigart, 2 Ben. 2 Comnionwealtli v. Linton, 2 Va. C. C. 356 (1868). Cas. 205 (1820). ^ Bass v. State, 29 Ark. 142 (1874); 3 Murphy v. Commonwealth, 11 People v. Budge, 4 Park. Cr. Cas. Bush (Ky.) 217 (1875) ;_ Common- (N. Y.) 519 (1860) ; Wormeley v. wealthr. McNeill, 36 Mass. (19 Pick.) State, 10 Gratt. (Va.) 658 (1853); 127 (1837). Reg. v. Taylor, 9 Car. & P. 672 (1840); * See Santo v. State, 2 Iowa, 165 s.c. 38 Eng. C. L. 391. (1855); s.c. 63 Am. Dec. 487; Com- ^ United States v. Bloomgart, 2 monwealth !'. Leight, 1 B. Mon. (Ky.) Ben. C. C 356 (1868) ; s.c. 7 Int. 107 (1840) ; Holmes v. State, 44 Tex. Rev. Rec. 148. 631 (1876). ^ See Queen v. Garden, 49 L. J. 5 See United States v. Southmayd, M. C. 1 (1870). 6 Biss. C. C. 321 (1875) ; s.c. 1 N. Y. « See United States v. Bloomgart, Week. Dig. 155 ; United States v. 2 Ben. C. C. 356 (1868). SEC. 236.] PRELIMINARY EXAMINATION. 267 the magistrate making the preliminary examination may- issue summons or warrants and secure their attendance in the same manner that the presence of the accused is secured.^ Witnesses for the accused are not generally examined,^ but it is thought that persons present at the homicide may properly be examined to explain what is said by the witnesses for the j)rosecution.2 The examining magistrate cannot issue pro- cess into another state to summon witnesses for the accused.^ Sec. 234. Effect of finding- indictment on rig-ht to exam- ination. — If there is no probable ground of guilt, the prisoner is to be discharged ; ^ but the charge cannot be dismissed pending an examination,* nor can the defendant be deprived of the right to a preliminary examination by the finding of an indictment against him during the pendency of the exam- ination ; ^ and the finding of an inquisition by a coroner's jury will not deprive the accused of a right to a preliminary hear- ing, whether he was arrested before or after the filing of the inquisition.'' Sec. 235. Where preliminary examination to be held. — A person arrested on a charge of homicide is entitled to a speedy examination, within twenty-four hours from the time of his preliminary commitment, except in those cases where special and sufticient cause is shown for longer delay, or such delay is at the prisoner's own request.'^ Where cause is shown on the part of the government for further delay to procure testimony, great diligence should be required in its procure- ment, and, in case of neglect, the prisoner should be dis- charged.'^ Sec. 236. Same — Adjournment of exan»ination. — Where a person is arrested on a charge of homicide and brought before a magistrate for preliminary examination, the latter has a reasonable time within which to inquire into the 1 4 Am. & Eng. Ency. of L. tit. ^ ggg People v. Drury, 2 Edm. Sel. "Criminal Procedure," p. 731. Cas. (N. Y.) 351 (1851). ■^ See United States v. Wliite, 2 ^ In re Kamscar, 1 N. Y. Cr. Rep. Wash. C. C. 29 (1807). .33 (1882). 3 Rapalje's Crim. Proc. § 16. " See United States v. Worms, 4 4 United States v. Schumann, 7 Blatchf. C. C. 332 (1859). Sawy. C. C. 439 (1860). 268 HOMICIDE. [chap. X. matter and make his final decision ; ^ and where the examina- tion cannot be completed at a single hearing, the accused may be remanded from time to time.^ Sec. 237. Same — Keducingr testimony to writing. — Where the statute requires that the evidence taken at the preliminary examination shall be reduced to writing and signed by the witnesses, if it appears that the accused never had a preliminarj^ examination, or waived such examination, and the witnesses claimed to have been examined did not sign the evidence claimed to have been given, it will be error to overrule the accused's motion to quash, and compel him to plead to the indictment or information, and go to trial thereon.3 But in cases where the preliminary examination before the committing magistrate is in other respects regular and con- forms to the other express terms of the statute, the fact that the evidence is not read to or by the witness before signing caimot affect the status of the defendant in the trial court, to which he is bound over at such examination. There is no question of the right of the accused under such a statute to require at the examination that the testimony shall be read before it is signed; but where no objection is then made because of such omission, the accused cannot afterwards be heard to complain of it.* Sec. 238. Waiver of preliminary examination, — In California one accused of homicide or other felony cannot waive a preliminary examination,-^ but it is thought that in all other states the accused may either insist upon or waive a preliminary examination. After waiving the preliminary examination the accused will not be heard to complain that none was heard.^ In case of a waiver of a preliminary examination the 1 This matter is regulated by stat- People v. Brock, 04 Mich. 691 (1887); ute in most if not all the state*. s.c. 31 N. W. Rep. 585. 2 See Hamilton ;'. People, 20 Mich. « See People v. Gleason, 63 Mich. 176 (1874) ; Pardee v. Smith, 27 626 (1886) ; s.c. 30 N. W. Rep. 210. Mich. 43 (1873). In most of the ^ See Kallock v. Superior Court, states the length of time of the ad- 50 Cal. 229 (1880). journment is regulated by statute. ^ See State v. Cobb, 71 Me. 198 3 People I'. Gleason. 03 Mich. 026 (1880). (1880); s.c. 30 N. W. Rep. 210; SEC. 239.] PRELIMINARY EXAMINATION. 269 magistrate, or other proper ofificer before whom the accused is brought, may bind him over to await the action of the grand jury on the showing made by and for the grade of homicide charged in the comphiint and warrant, and the prose- cuting officer can file an information or procure an incUctment charging him with any grade of homicide covered by the warrant and sustained by the evidence on which it is issued.^ Where the accused wishes the committing maoistrate to specially designate the degree of homicide, below the highest, it is thought that a preliminary examination cannot be waived.^ Sec. 239. Warrant of coiiiinitiueiit. — The warrant of commitment, to be valid, must in all respects comply with the terms of the statute under which it is issued. Thus a warrant of commitment issued by a magistrate under the Ashburton treaty and the Canadian statute which uses the words " did wilfully, maliciously, and feloniously stab and kill," and omitted the words " murder" and " with malice aforethought," and concluded by instructing the jailer to " there safely keep him, the prisoner, until he shall be thence delivered by due course of law," does not come within the provisions of the treaty or statute, and is consequently defec- tive.-^ 1 Stuart I'. People, 42 Mich. 255 488 (1880) ; s.c. 7 N. W. Rep. 71 ; (1879) ; s.c. 3 N. W. Rep. 863. Stuart v. People, 42 Mich. 255 (1879). 2 See People v. Dowd, 44 Mich. ^ In re Anderson, 11 Up. Can. C. P. 9. CHAPTER XI. INDICTMENT AND INFORMATION. Sec. 240. Necessity for. Sec. 241. Essentials of. Sec. 242. Matters pertaining to the finding of tlie indictment. Sec. 243. Tlie caption. Sec. 244. Ciiarging of tlie offence — General rules. Sec. 245. Same — Charging in two counts — Election. Sec. 246. Same — As at common law. Sec. 247. Same — In the language of the statute. Sec. 248. Same — Averment that the act was unlawful. Sec. 249. Same — In abortion. Sec. 250. Same — Intent — Simple averment of intent to kill. Sec. 251. Same — Wilfully, feloniously, and with malice aforethought. Sec. 252. Same — Premeditation and deliberation. Sec. 253. Same — Specifying the degree. Sec. 254. Same — Charging killing while committing another offence. Sec. 255. Same — Means and manner of the homicide — Averment that injury charged caused the death. Sec. 256. Same — Averment of instrument or means used. Sec. 257. Same — Alleging weapon in defendant's hands. Sec. 258. Same — Charging killing with gun or pistol. Sec. 259. Same — Charging killing with bludgeon or stick. Sec. 260. Same — Charging killing by strangulation. Sec. 261. Same — Charging killing by poisoning — Quantity used. Sec. 262. Same — Description of wound. Sec. 263. Time of act causing death. Sec. 264. Time of the death. Sec. 265. Averment of death. Sec. 266. Averring place of the act causing death. Sec. 267. Same — Under federal statutes. Sec. 268. Averring place of the death. Sec. 269. Description of deceased — Setting out Christian name — Idem sonans. Sec. 270. Averring defendant's sanity. Sec. 271. Conclusion of indictment. Sec. 272. Charging more than one homicide by the same act. Sec. 273. Joinder of counts — Different modes of committing one offence. Sec. 274. Same — Different offences. 270 SEC. 241.] INDICTMENT AND INFORMATION. 271 Sec. 275. Same — rrincipjils and accessories. Skc. 270. Indictment of accessories and co-conspirators. Skc. 277. Joint indictment. Sec. 278. Signature and indorsement of the indictment. Sec. 240. Necessity for. — All persons accused of homi- cide must be put on trial on some regular and established form of accusation. The Federal Constitution provides^ that "no person shall be held to answer for a capital or otherwise in- famous crime unless on a presentment or indictment of a grand jury " ; but it is thought that prosecutions for homi- cides not punishable capitally may be authorized by statute to be by indictment or information in the discretion of the prose- cuting officer,^ because a state is not forbidden by the United States Constitution, or the amendments thereto, from prose- cuting offences by information ; ^ but all prosecutions for homicide must be either by indictment or information.* Prosecutions by information being in derogation of the common law and a departui-e from the general policy of the law, and statutes providing for it being in opposition to the long-settled policy of the law, must be strictly construed.^ Sec. 241. Essentials of. — To be valid an indictment must be presentet\ to some court having jurisdiction of the homi- cide charged therein ; it must appear to have been found by a grand jury of the proper county or district ; that the indict- ment was found to be a' true bill, and must be signed by the foreman of the grand jury. The indictment must charge the time and place and circunjstances of the homicide with clear- ness and certainty, so that the party accused may have full notice of the charge and be able to make his defence with all reasonable knowledge and ability.^ It must also contain the 1 Amendt. art. 5, § 1. An. 364 (1859) ; United States v. 2 See State v. Cole, 38 La. An. 843 Howard, 17 Fed. Rep. 038 (1883). (1880). ^ State v. Boswell, 104 Ind. 545 3 Shular v. State, 105 Ind. 289 (1885) ; s.c. 4 N. E. Hep. 675. (1885); s.c. 4 N. E. Rep. 870; State ^ Commonwealth v. Buyer, 1 Binn. V. Boswell, 104 Ind. 541 (1885) ; .s.c. (Pa.) 201 (1807) ; Spangler v. Com- 4 N. E. Rep. 675. monwealth, 3 Binn. (Pa.) 533 (1811) ; ■^ Shular v. State, 105 Ind. 289 Randolph v. Commonwealth, Serg. (1885); s.c. 4 N.E. Rep. 870; State !\ & R. (Pa.) 398 (1821); Stewart v. Boswell, 104 Ind. 541 (1885) ; s.c. 4 Commnnwealtli, 4 Serg. & R. (Pa.) N. E. Rep. 675; State v. Ross, 14 La. 194 (1818) ; United States v. Cantril, 272 HOMICIDE. [chap. XI. title of the prosecution, the name of the court in which it is pre- sented, names of parties, a statement in ordinary, concise, and generally intelligible language of the acts constituting the of- fence ; and must be direct and certain as to the party and offence charged, the county of its commission, and the circumstances, if they are necessary to constitute a complete offence.^ Sec. 242. Matters pertaining to the finding^ of the indictment. — The rules which govern the finding and presenting of an indictment for any grade of homicide are the same that apply to that part of the prosecution for all other felonies. This applies to the qualifications of grand jurors, as well as to the procedure itself; and, therefore, kinship between a grand juror and a person charged with murder will not vitiate the indictment.'^ The full number of grand jurors prescribed by law must be drawn,^ and the jury must be regularly impanelled, unless the accused be in cus- tody awaiting its action."^ It is sometimes allowable for a person in custody on a charge of homicide, to exercise the right of challenge in the impanelling of a grand jury ; but a failure to allow him this opportunity is no ground for setting aside the indictment. Tlius it is held by the supreme court of Minnesota in the case of State v. Hoyt,^ that the fact that the accused had no opportunity to interpose a challenge to any grand juror or to the panel, is not a ground for setting, aside an indictment for 8 U. S. (4 Cr.) 1G7 (1807); bk. 2 L. ed. are drawn to serve at the term in 584 ; 2 Hale P. C. 167 ; 4 BI. Comm. wliicli an indictment for murder is 301 ; Story Const. (4th ed.) § 1785. found, the indictment is fatally defec- 1 Jane ;;. Commonwealtii, 3 Met. tive. Gladden v. State, 12 Fla. 562 (Ky.) 18 (1800). (1869). '■^ Thus in Ohio it is not a good plea •* It has been held in California to an indictment for murder that a tliat there is no error in the special member of the grand jury, wiiich order of a court impanelling the grand found such indictment, was a nephew jury, after the offence had been of the person who was murdered. The cliarged against the prisoner, and nephew not being " exempt from wlien he was in custody. People r. serving as juror," within the Ohio Moice, 15 Cal. 329 (1860) ; People v. statute, prescribing qualifications of Cuintano, 15 Cal. 327 (1860). And grand jurors. If kinship were a dis- it is of no consequence that such qualification, the grand jury might order was not regularly served on the have to be changed for each case, sheriff, or that he summoned by- State V. Easter, 30 Oliio St. 542 (1876). standers. People v. Moice, 15 Cal. 329 3 Thus it has been held in Florida (18(50). that when only fourteen grand jurors "" 13 Minn. 132 (1868). SEC. 242.] INDICTMENT AND INFOR^MATION. 273 homicide, — especially if the record shows that liis counsel was in court at the time the grand jury were sworn, and then made no objection. Tlie grand jury, after its organization, is governed in its proceedings by common law rules, and an indictment is not vitiated by the improper discharge of a juror if tlie number necessary to find an indictment remains.^ Thus where- three out of a grand jury of sixteen were challenged by the de- fendant and excused, and the remaining thirteen found an indictment for murder, it was held good.^ It is sometimes provided that a charge once dismissed by a grand jur}^ cannot subsequently be made the foundation for an indictment without leave of court ; but this rule cannot l)e applied where the former charge dismissed was for an offence of a different character, although growing out of the same act.^ Witnesses who are not competent to testify against the de- fendant upon the trial, should not be allowed to testify before the grand jury to facts relating to the same offence ; but where they are erroneously allowed so to testify, an objection to the indictment on that account is too late when made for the first time after trial. Thus in State v. Houston^ the supreme court of Iowa held that on the trial of an indictment for murder, an objection that the defendant's wife testified against him before the grand jury, comes too late when raised in the first instance after conviction. No person other than the grand jurors, except the prosecut- ing officer, should be allowed in the grand jury room during the consideration of the charge ; but where another person is present, the setting aside of the indictment on that account will be a matter largely within the discretion of the court, looking to the capacity in which such person was wrongfully present, as well as to the other circumstances of the indict- ment. In the case of People v. Lee,'^ the defendant, under an indictment for murder, asked leave to withdraw his plea of not guilty, for the purpose of moving to set aside the 1 Gladden v. State, l'.i Fla. 562 « See People v. Warren, 100 N. Y. (1869). 01.5 (1888) ; s.c. 15 N. E. Rep. 880. - People V. Gatewood, 20 Cal. 147 ■* 50 Iowa, 512 (187!»). (1862). 5 17 Cal. 70 (1860). 274 HOMICIDE. [chap. XI. indictment, on the ground that one S. was present in the grand jury room while the charge was in consideration. S. was at the time assistant district attorney, though not dis- closed as such by the record. The leave was refused, and on appeal it was held that the granting of leave was within the discretion of the trial court, and that the circumstances did not show that a refusal to grant it was an abuse of this dis- cretion. Sec. 243. The caption. — The caption of an indictment is the first part of its body, and its purpose is to show the authority by which the charge is presented and the jurisdic- tion of the court to entertain it ; ^ its general form must vary according to the jurisdiction of the court.^ The caption forms no part of an indictment and is not essential to its validity ; ^ and, consequently, the appearance of an unneces- sary written caption will not invalidate the indictment.^ It is held in New York that the clerk may affix the caption at any time with a view to perfecting the record.^ But it is essential that it should appear from the indictment as returned 1 Noles r. State, 24 Ala. 672 (1854); Thomas i: State, G Miss. (5 How.) 20, 31 (1840); State v. Gary, S6 N. H. 359 (1858) ; People v. 'Bennett, 37 N. Y. 117 (1867) ; s.c. 93 Am. Dee. 551 ; State v. Sutton, 1 Murph. (X. C.) 281 (1809); State v. Williams, 2 McC. (S. C.) 383 (1823). - See Goodloe v. State, 60 Ala. 93 (1877); Reeves v. State, 20 Ala. 33, 36 (1852); Bass v. State, 17 Fla. 685 (1880); Mills v. State, 52 Ind. 187 (1875); Lovellf. State, 45 Iiul. 550 (1874) ; State v. Jackson, 73 Me. 91 (1881); s.c. 40 Am. Rep. 343; State V. Hurley, 71 Me. 354 (1880); State V. Bartlett, 55 Me. 200 (1867) ; State r. Conley, 39 Me. 78 (1854) ; Keitli- ler V. State, 18 Miss. (10 Smed. & M.) 192, 196 (1848); Dowlin^ v. State, 13 Miss. (5 Smed. & M.) 664 (1846) ; Carpenter v. State, 5 Miss. (4 How.) 163; s.c. 34 Am. Dec. 116; Wood- .sides V. State, 3 Miss. (2 How.) 655 (1837); State v. Freeman, 21 ]\Io. 481 (1855) ; State v. Zule, 10 N. J. L. (5 Ilalst.) 318 (1829) ; People v. Thurston, 2 Park. Cr. Cas. (N. Y.) 49 (1852) ; Turner v. Commonwealth, 86 Pa. St. 54 (1878) ; s.c. 27 Am. Rep. 683; States. Long, 1 Humph. (Tenn.) 386 (1839); Mitchell r. State, 8 Yerg. (Tenn.) 514 (1835) ; Benedict?;. State, 12 Wis. 313 (1860); United States r. Wilson, Bald. C. C. 78 (1830); United States v. Williams, 1 Cliff. C. C. 5 (1858); United States v. Dawson, 1 Hempst. C. C. 643 (1855); United States r.Keefe, 3 Mas. C. C. 475 (1824); Hollo way v. Reg. 2 Den. C. C. 287 (1851) ; Rex v. Townlej-, 18 How. St. Tr. 330 (1746); Broome v. Reg. 12 Q. B. 834 (1848) ; Rex v. Fearnley, 1 T. R. 316 (1786); Rex v. Brooks, Trem. P. C. 151. 3 State r. Lyons, 3 La. An. 154 (1848) ; State r. Peterson, 2 La. An. 921 (1847) ; Wagner v. People, 4 Abb. App. Dec. (N. Y.) 509 (1866). * Winn V. State, 5 Tex. App. 621 (1879). ^ .Myers r. People, 4 T. & C. (N. Y.) 292 (1874). SEC. 243.] indictmi:nt and information. 275 that the prosecution was by the state,^ and not by the grand jury of a county in the state.^ It shoukl appear by the caption of an indictment (1) that the grand jury were legally constituted ; ^ (2) that they were properly sworn,* and on their oaths present the indictment;^ (3) in what county the court was held and the grand jurors were sworn ;^ (4) and in some jurisdictions it must disclose the names and style of office of the judges composing the court ; " (5) that the grand jurors were of the proper county ; ^ and (6) the title of the court,^ but a slight variation from the correct title will not affect the indictment.^" Thus in People V. Thurston ^^ it was held not to be a valid objection to an indictment for a capital offence, that in its caption one of the justices of the peace, before whom it was found, was described as " in and for the county of ," whereas jus- tices are town officers.^^ 1 Savage r. State, 18 Fla. 909 (1882) ; Saine l: State, 14 Tex. App. 144 (1884). 2 State v. Cutter, 65 Mo. 503 (1877). See People i-. Bennett, 37 N. Y. 117 (1867). 3 Fitzgerald v. State, 4 Wis. 395 (1855). * In an indictment for murder in Tennessee, it need not appear in the caption that the jury were sworn, if such fact appear in the body of the indictment returned by them. State V. Long, 1 Humph. (Tenn.) 386 (1839). ^ Vanvickle i\ State, 22 Tex. App. 625 (1886) ; s.c. 2 S. W. Rep. 642. •^ State r. P'ields, Peck (Tenn.) 140 (1823). But it has been held in Tennessee that the latter fact may appear in the body of the indictment. State v. Long, 1 Humph. (Tenn.) ,386 (1839). ' See State v. Zule, 10 N. J. L. (5 Halst.) 348 (1820). 8 Perkins r. State, 50 Ala. 154 (1873) ; Beauchamp v. State,6 Blackf. (Ind.) 299 (1842) ; Byrd r. State, 2 Miss. (1 How.) 163 (1834) ; People V. Haynes, 55 Barb. (N. Y.) 450 (1869) ; Scales v. State, 7 Tex. App. 361 (1880) ; West v. State, 6 Tex. App. 485 (1879) ; Davis v. State, 6 Tex. App. 133 (1879); United States V. Williams, 1 Cliff. C. C. 5 (1858) ; Cornwellr. State, 1 Mart. & Y. (Tenn.) 147 (1827) ; Bonds v. State, 1 Mart. & Y. (Tenn.) 143 (1827) ; s.c. 2 Laws. Def. 904 ; 17 Am. Dec. 795. '•' A contrary doctrine is held in Taylor v. Commonwealth, 2 Va. Cas. 94 (1817). 1' Bonner v. State, 55 Ala. 242 (1876) ; Harrison v. State, 55 Ala. 239 (1876) ; United States v. Spaul- ding, 3 Dak. 85 (1882) ; s.c. 13 N. W. ' Rep. 357, 538 ; United States v. Beebe, 2 Dak. 292 (1880) ; s.c. 11 N. W. Rep. 505 ; State v. Munch, 22 Minn. 67 (1875) ; State r. Meinhart, 73 Mo. 562 (1881) ; State c. Sweeney, 68 Mo. 96 (1878) ; United States i-. Upham, 2 Mont. 170 (1874) ; Firby v. State, 59 Tenn. -358 (1874). 11 2 Park. Cr. Cas. (N. Y.) 49 (1852). 12 In the case of Reg. c. Winegarner (W. C. Q. B.), 25 Can. L. J. 215 (1889). The caption to an inquisition find- ing the prisoner guilty of murder, stated that the inquest was held at H. and C. on the llth and 15th days of January, in the 51st year of the reign of Her Majesty Victoria, and the inquisition to be "an inquisition 276 HOMICIDE. [chap. XI. Sec. 244. Charging the offence — General Rules. — An indictment for any degree of homicide must aver the exist- ence of every material fact or circumstance which is a neces- sary element in the offence charged, and an omission of any such necessary averment is fatal,^ even after verdict ; ^ and it must be directly averred that the defendant did the act with Avhich he is charged. Thus an information for murder which informs the court that the defendant is in custody on the charge of felony, without indictment, "said charge bein^ described as follows," and followed by a description of mur- der in the second degree, is insufficient, because it does not allege directl}^ in proper form, that the defendant did the act with which lie is charo-ed.'^ And the substitution of the name of the deceased for that of the defendant, thus alleging that the defendant mortally wounded himself, renders an indict- ment for murder fatally defective.* In an indictment for murder it is usually considered that the word "murder" is a term of art which cannot be supplied by any other word ; ^ and if an indictment fails to charge that the accused feloniously murdered the deceased, although it charges him with inflicting a mortal wound, it will be treated as an indictment for manslaughter only, and not for murder.^ indented taken for our Sovereign Lady delivered tlic summons for tlie jury, tlie Queen, &c., in view of tlie body was at the inquest sworn in as one of of an infant cliild of A. W. (one of the jurymen and was also sworn as a the prisoners), then and there lyin"-, witness, and G., a juryman, was also and upon tlie oath of (giving the sworn as a witness. Held, that the names of the jurymen), good and fact of L. being such constable did lawful men of the country, duly not preclude him from being on the chosen, and who being then and there jury, or did either of sucii positions duly sworn and charged to enquire j)reclude him giving evidence as a for our said Lady tlie Queen wlien, witness, and so also G. Y. was not where, how and by what means the precluded. said female child came to her death, ^ State c. Verrill, 54 Me. 408 (1807). do upon their oaths say," &c. The ^ Pt,ople v. Cox, 9 Cal. 32 (1858); court held, that the statement of the People v. Wallace, 9 Cal. 30 (1858). time of holding the inquest was suffi- ^ piinn v. State, 24 Ind. 280 (1865). cient; ^hat it sufficiently appeared ■* State v. Edwards, 70 Mo. 480 that the presentment was und(>r oath, (1879). and that it need not be under seal ; " Dias v. State, 7 Blackf. (Ind.) 20 that there was a sufficient finding of (1843); s.c. 39 Am. Dec. 448; State the place where the alleged murder v. Harris, 12 Nev. 414 (1877). Corn- was committed and of identification /laip State r. O'Niel, 23 Iowa, 272 of the child murdered with that of tlie (1807). l)ody of which the view was had. L., « Dias v. State, 7 Blackf. (Ind.) 20 the constable to whom the coroner (1843) ; s.c. 39 Am. Dec. 448. Fol- SEC. 244.] INDICTMENT AND INFORMATION. 277 It may be laid down as a general rule that an indictment is sufficient if a man of ordinary intelligence can understand from it that, under such circumstances as show a felonious intent, a mortal wound or injury was inflicted by the defend- ant upon the deceased, of which wound or injury the latter died within a year and a day from the time of its infliction.^ It has been said that under a statute ^ prescribing the requi- sites of indictments and informations, and requiring a state- ment of the facts constituting the offence, in ordinary and concise language, and in such manner as to enable a per- son of common understanding to know what is intended, an information for murder is sufficient if it charges that the defendant did unlawfully, feloniously, and of his malice afore- thought, kill the deceased, naming him, and stating the appropriate time and place. ^ The presence in the indictment of words which are irrelevant and harmless is no cause for reversal of a conviction.^ Thus it is held by the supreme court of New York that an indictment for murder at common law, — that is, charging the act to have been done with malice aforethought, — is not vitiated by the addition of the words, " that the act was done from a premeditated design to effect the death of the deceased," because such latter words may be rejected as surplusage.^ An indictment for murder which charges that the homicide was committed on the " tweflth day of August " instead of the tivelfth day of August, may be good under the statute, although not of common law.*" lowed in Reed i-. State, 8 Iiul. 202 2 guch as Col. Pen. Code, §§ 950, (1856). 959. . 1 People r. Davis, 73 Cal. .355 » People v. Davis, 73 Cal. 355 (1887) ; People v. Llojd, 9 Cal. 54 (1887) ; s.c. 15 Pac. Hep. 8. (1858). * Fahnestock v. State, 23 Ind. 231 An indictment presented by the (18(34) ; People v. White, 22 Wend, grand jury of tiie Territory of Wash- (N. Y.) 107 (1839) ; Pennsylvania i-. ington, county of K., charging de- Bell, 1 Addis. (Pa.) 156 (1793). fendant in said county with purposely ^ See Fitzgerrold v. People, 4 Abb. and maliciously killing deceased by (N, Y.) Pr. N. S. 68 (1868) ; 5 Trans, shooting and mortally wounding said App. 273 ; affirming s.c. 49 Barb, deceased with a pistol, from which (N. Y.) 122. mortal wound deceased instantly died, ^ State v. Shepherd, 8 Ired. (N, C.) is sufficient in form. Timnierman ?•. L. 195 (1847). Territory, 3 Wash. Tr. 445 (1888) ; s.c. 17 Pac. Rep, 624. 278 HOMICIDE. [chap. XI. Sec. 245. Same — Charging- in two counts — Election.^ — It is well settled that where several distinct capital felonies are charged in the same indictment, the prosecution may, on motion, elect upon which count to proceed ; ^ the felonies charged must be distinct and independent ones.^ Instead of requiring an election, however, the court may permit the prosecutor to nolle pros, the extra counts ;^ but in those cases where the act charged in the two counts is the same charging a different intent will not give the right to have an election ;^ an election will be directed only where the offences charged are separate and distinct ; ^ neither will an election be ordered where the language of the several counts is varied merely to meet the proof.^ In the case of Theal v. Reg.^ an indictment contained two counts, one charging the prisoner with murdering M. J. T. on the first day of November, 1881 ; the other with manslaugh- ter of the said M. J. T. on the same day. The grand jury found " a true bill." A motion to quash the indictment for misjoinder was refused, the counsel for the prosecution elect- ing to proceed on the first count only, and on judgment reserved it was held, affirming the judgment of the supreme court of New Brunswick, that the indictment was sufficient. Where an election between two or more counts is made, this is a practical abandonment of all the rest of the indict- ment.^ It is in no case the duty of the prosecuting officer to volunteer an election as to the count upon which he will try the defendant ; the defendant must move to secure an election at the proper time and no advantage can be claimed for the omission. 1^ Sec. 246. Same — As at common law. — At common law homicide can be prosecuted only by indictment, and this still 1 See /)o.sV, §§ 273, 274, 275. e People v. Campbell, 1 Etlm. Sel. 2 United States v. Darnaud, 3 M^all. Cas. (N. Y.) 307 (184()). See Camp- Jr. C. C. 143 (1855) ; United States bell r. State, 35 Ohio St. 70 (1878); V. Nye, 4 Fed. Rep. 888 (1880). State r. Halida, 28 W. Va. 400 (1886). 3 State V. Manluff, 1 Del. Cr. Cas. " State v. Morrison, 85 N. C. 561 208; Goodhue v. People, 04 111. 37 (1881). (1880) ; State v. Scott, 15 S. C. 434 » 7 Up. Can. S. C. K. 307 ; s.c. 7 (1881). Can. S. C. 307. 4 United States v. Nye, 4 Fed. Rep. •' State v. Snialley, 50 Vt. 736 888 (ISHO). (1878). aCandyf. Slate, 8 Neb. 482 (1879). i'U\^ople v. Dunn, 00 N. Y. 104 SEC. 247.] INDICTMENT AND INFORMATION. 279 remains tlie general rule ; but prosecutions by information are sometime allowed.^ In the federal courts prosecutions for homicide must be by indictment, because all grades of homicide are infamous crimes ; ^ but the provision of the federal constitution limiting such prosecutions to this form is not ap23licable to the states.^ An indictment charging the offence substantially as at common law is usually sufficient,* and it has been said that the particularity required at common law is not now requisite, if the indictment otherwise contains all that is substantially necessary to inform the defendant of the charge against him ; ^ and a common law indictment for murder, not sj^ecifying the degree, is sufficient to sustain a conviction of murder in any degree defined by the statute under which the prosecution is had.6 Sec. 247. Same — In the language of the statute. — An indictment for any grade of homicide which charges the offence committed in the form prescribed by the statute is usually sufficient in all respects ; '' because it is usually suffi- (1882) ; Commonwealth v. Stinger, 15 Phila. (Pa.) 375 (1881). 1 See Noles v. State,' 24 Ala. J372 (1854); People v. Giancoli, 74 Cal. 642; s.c. 16 Pac. Rep. 510 (1888). ^ The federal constitution provides that " No person shall be lield to an- swer for a capital or otherwise infa- mous crime, unless on presentment or indictment of a grand jurj'." Consti- tution of United States, Amend, to art. 5, § 1. 3 Noles V. State, 24 Ala. 672 (1854). * People V. Dolan, 9 Cal. 576 (1858) ; People v. Lloyd, 9 Cal. 54 (1858). See Geherke v. State, 13 Tex. 568 (18.55). At common law the indictment for manslaughter is not sufficient therefor under Texas Penal Code, article 59.3, defining the oifence " voluntary homi- cide, committed under the immediate influence of sudden passion arising from an adequate cause, but neither justified nor excused by law." Jen- nings V. State, 7 Tex. App. 350 (1880). Compare Shrivers v. State, 7 Tex. App. 450 (1880). 5 People V. Dolan, 9 Cal. 576 (1858). 6 McAdams v. State, 25 Ark. 405 (1809) ; Redus v. People, 10 Colo. 208 (1887) ; Green v. Commonwealth, 94 Mass. (12 Allen) 155 (1866) ; Car- gen V. People, 39 Mich. 549 (1878) ; People V. Willett, 102 N. Y. 251 (1886) ; Taylor v. State, 11 Lea (Tenn.) 708 (1883) ; Hines v. State, 8 Humph. (Tenn.) 597 (1848) ; Mitchell v. State, 5 Yerg. (Tenn.) 340 (1833) ; s.c. 8 Yerg. (Tenn.) 514; Wall v. State, 18 Tex. 682 (1857); s.c. 70 Am. Dec. 302 ; Cluverius v. Commonwealth, 81 Va. 787 (1886)'; Livingston v. Com- monwealth, 14 Gratt. (Va.) 592 (1857). See State v. Millain, 3 Nev. 409 (1867) ; Tenorio v. Territory, 1 N. Hex. 279 (1859)-; People v. Enoch, 13 Wend. (N. Y.) 159 (18.34) ; s.c. 27 Am. Dec. 197; McConnell v. State, 22 Tex. App. 354 (1886) ; s.c. 58 Am. Rep. 647 ; 3 S. W. Rep. 699 ; State v. Cameron, 2 Chand. (Wis.) 172 (1850). Compare Fonts v. State, 4 G. Greene (Iowa), 500 (1854). " See People v. De La Cour Soto, 63 Cal. 165 (1883) ; People v. Murray, 280 HOMICIDE. [chap. XL ciqnt in an indictment to describe any statu i^ory offence or homicide in the language of the statute ; ^ and particularly is this true where by itself the words of the statute the homicide is fully, directly, and expressly alleged, without uncertainty or ambiguity^ as where the terms employed by the statute have a fixed legal signification.^ Thus it has been held that an indictment charging murder in the language of the statute,'* sufficiently sets forth the " nature and cause of the accusation " within the constitution ; the words " deliberately and of malice aforethought " sufficiently indicate the grade.^ And it has been held in Texas that on an indictment following the forms prescribed by the statute is sufficient ^ in charging that the defendant " did, with malice aforethought, kill B by striking him with a scantling, against the peace and dignity of the State." " But it has been held that an indictment for manslaughter is insufficient for not following the words of the statute in charging the killing.^ Sec. 248. Same — Averment that the act was unlawful. — The indictment need not generally use the word " unlaw- ful " or " unlawfully " in the description of the act charged, it being sufficient if the act be shown to be unlawful without any set word or words.^ If the indictment is for murder, the allegation that the killing was with malice aforethought, is a 10 Cal. 309 (1858) ; People v. Dolan, United States v. Lancaster, 2 McL. 9 Cal. 57(3 (1858); Nichols v. State, C. C. 431 (1841). 46 Miss. 284 (1872) ; Graves v. State, - See State v. Shentnn, 22 Minn. 45 N. J. L. (1(3 Vr.) 203 (1883); 311 (1875) ; State z;. Halsted, 39 N. J. O'Kelly u. Territory, 1 Oreg. 51 L. (10 Vr.) 402 (1877). (1853) ; Cathcart v. Commonwealth, -^ See State v. Davis, 70 Mo. 467 37 Pa. St. 108 (1860); Peterson v. (1879). State, 12 Tex. App. 650 (1883) ; * N. J. Cr. Proc. § 45. Dvvyer v. State, 12 Tex. App. 535 = Graves v. State, 45 N. J. L. (16 (1883). Vr.) 203 (1883); s.c. 5 Cr. L. Mag. 1 Lodano v. State, 25 Ala. 64 815 ; 4 Am. Cr. Rep. 386. (1854) ; State v. Moser, 33 Ark. 140 '• Texas Act, March 26, 1881. (1878); Fuller v. People, 92 111. 182 '^ Peterson v. State, 12 Tex. App. (1879); Smitii r. State, 85 Ind. 650 (1883) ; Dwyer v. State, 12 Tex. 553 (1882) ; State v. Tissing, 74 Mo. App. 535 (1883). 72 (1881); State v. Keneston, 59 »< Nichols v. State, 46 Miss. 284 N. H. 36 (1879); Antle v. State, 6 (1872). Tex. App. 202 (1879); People v. ■' Bcasley v. People, 89 III. 571 Goiigh, 2 Utah, 70 ri879) ; Scott r. (1878); Beavers v. State, 58 Ind. Coinnionwealtli, 77 Va. .344 (1883); 5.30(1877); State r. Lcepcr, 70 Iowa, State V. lliffe, 10 W. Va. 794 (1877) ; 748 (1886) ; s.c. 30 N. W. Rep. 501 ; SEC. 249.] INDICTMENT AND INFORMATION. 281 sufficient showing of the unlawfuhiess of the act causing death ; ^ and where it is not charged that the killing was with malice, the statement of facts showing an unlawful act is sufficient.^ An indictment for involuntary manslaughter must show that the defendant was in the commission of some unlawful act, and that the death resulted therefrom. Alleging in such case that the death resulted from using unlawfulh% wilfully, and feloniously an instrument upon a pregnant female, for the pui'pose of producing a miscarriage, the use of such instru- ment not being necessary to preserve the life of the woman, is sufficient.^ Sec. 249. Same — In abortion. — In State v. Leeper,* an indictment for murder in producing an abortion contained two counts, in one of which it was charged that the defendant attempted to produce a miscarriage on the deceased by means of a certain instrument, and in the other that he administered to the deceased a " certain noxious and abortifacient drug," with the intent to produce such miscarriage ; and in both counts it was alleged that it was not then and there necessary to cause such miscarriage for the preservation of the life of the deceased. It was held, that an exception in the statute ^ providing for the punishment, &c., " unless the same were done as necessary for the preservation of the mother's life," was sufficiently negatived by the indictment, and that, although the language used in the indictment negatived more than the statute required, this formed no valid objection to the same, since it imposed on the prosecution the neces- sity for stricter proof. In an indictment for the crime of Thompson v. State, 36 Tex. 326 111 ; Bean i.-. State, 17 Tex. App. 60 (1872); Jacks;an v. State, 22 Tex. (1885). App. 442 (1887) ; s.c. 3 S. W. Rep. - Beasley v. People, 89 111. 571 111 ; Bean v. State, 17 Tex. App. 60 (1878) , State v. Lceper, 70 Iowa, 748 (1885). See Willey v. State, 46 Ind. (1886). See State v. Lay, 93 Ind. 363 (1874) ; SutclifCe v. State, 18 341 (1883) ; Willey f. State, 46 Ind. Ohio, 469 (1849) ; .s.c. 51 Am. Dec. 363 (1874). Compare Henry v. State, 459. Compare Henry v. State, 33 Ala. 33 Ala. 389 (1859). 389 (18.59). 3 Willey v. State, 46 Ind. 363 1 Beavers v. State, 58 Ind. 5.30 (1874). (1877) ; Thompson v. State, .36 Tex. * 70 Iowa, 748 (1886) ; s.c. 30 .326 (1872) ; .Jackson t-. State, 22 Tex. N. W. Rep. 501. App. 442 (1887) ; s.c. 3 S. W. Rep. ^ Iowa Code, § 3864. 282 HOMICIDE. [chap. XI. murder, committed by producing the miscarriage of a preg- nant woman, showed that the acts alleged were done with the design and intention to produce a miscarriage, which, it was averred, was not necessary to save the life of the woman, and this w^as held to be sufficient under the statute defining the offence.^ Sec. 250. Same — Intent — Simple averment of intent to kill. — As a general rule, a purpose to kill must be spe- cifically averred in an indictment for murder in a description of the offence ; ^ but such an averment is not necessary where the homicide is charged to have been committed while the slaj'er was engaged in the commission of a felony,'^ nor where it is charged to have been committed by means of poison unlawfully administered.* The averment need not be in the words of the statute, but is sufficient if in language which plainly shows the deadl}^ purpose.^ An averment that the accused " purposely gave a mortal wound," sufficiently alleges a purpose to kill.*^ In an indict- ment for murder by poison, an averment that the defendant knew of its noxious properties is not essential.''' Where the purpose to kill is not averred by w^ay of de- scription of the offence, the omission cannot be aided by the ordinary formal conclusion of the indictment which avers that " so " the jurors do find and say that the accused " did in manner and form aforesaid, feloniously, purposely, and of his deliberate and fraudulent malice, kill and murder the deceased," because such allecration being- nothing' more than a legal conclusion arising from the facts previously stated, 1 Beasley v. People, 89 111. 571 Slagle, 88 N. C. 630 (1881) ; Robins (1878). V. State, 8 Ohio St. 131 (1857). •^ Schaffer v. State, 22 Keb. 557 3 Cox v. People, 80 N. Y. 500 (1887); s.c. 35 N. W. Rep. 384; (1880). Loeffner v. State, 10 Oliio St. 598 * Commonwealth v. Hersey, 84 (1857) ; s.c. Law. Insan. 432 ; Hagan Mass. (2 Allen) 173 (18G1). Compare V. State, 10 Ohio St. 459 (1859) ; Kain Robins v. State, 8 Ohio St. 131 (1857). V. State, 8 Ohio St. 30(3 (1858) ; Fonts ^ Loeffner v. State, 10 Ohio St. 598 ?-. State, 8 Ohio St. 98 (1857). See (1857); s.c. Law. Insan. 432. Sny.ler r. State, 59 Tnd. 105 (1877) ; « Loeffner v. State, 10 Ohio St. 598 Commonwealth v. Hersey, 84 Mass. (1857) ; s.c. Law. Insan. 432. (2 Allen) 173 (18(!1); Morman v. 'State v. Slagle, 83 N. C. 630 State, 24 Miss. 54 (1852) ; Cox v. Peo- (1881). pie, 80 N, Y. 500 (1880) ; State v. SEC. 251.] INDICTMENT AND INFORMATION. 283 cannot cure any defects in the premises on which it assumes to be predicated.! Sec. 251. Same — Wilfully, feloniously, and with malice aforethought. — Malice aforethought is a necessary ingredi- ent in the crime of murder, and shoukl be specifically alleged in the indictment, either expressly or by words which nec- essarily import malice aforethought.^ " Maliciously " and malice aforethought may be used interchangeably .^ 1 Schaffer v. State, 22 Neb. 557 (1887) ; s.c. S5 N. W. Rep. 384. - Edwards v. State, 25 Ark. 444 (1869) ; Anderson r. State, 5 Ark. 444 (1843); People v. Davis, 73 Cal. 355 (1887) ; s.c. 15 Pac. Rep. 8; People V. Sehiiiidt, 63 Cal. 28 (1883); People V. BoniUa, 38 Cal. 699 (1869; ; People v. Vance, 21 Cal. 400 (1863) ; People r. Urias, 12 Cal. 325 (18-59); Redus V. People, 10 Colo. 208 (1887) ; .s.c. 14 Pac. Rep. 323; Territory v. Evans (Idaho), 17 Pac. Rep. 1.39 (1888) ; Finn v. State, 5 Ind. 400 (1854); State i-. TliuVman, 66 Iowa, 693 (1885); s.c. 24 N. W. Rep. 511; State I'. Neeley, 20 Iowa, 108 (1865) ; Fonts V. State, 4 G. Greene (Iowa), 500 (1854) ; State v. Fooks, 29 Kan. 425 (1883) ; Jane v. Connnon wealth, 3 Met. (Ky.) 18 (1860) ; State v. Williams, .37 La. An. 311 (1885) ; State V. Bradford, 33 La. An. 921 (1881) ; State ;;. Thomas, 29 La. An. 601 (1877) StJite v. Florenza, 28 La. An. 945 (1876); State v. Harris, 27 La. An. 572 (1875) ; State v. Forney, 24 La. An. 191 (1872); State v. Phelps, 24 La. An. 493 (1872) ; State V. Holong, 38 Minn. .368 (1888) ; s.c. 37 N. W. Rep. 587 ; State v. Johnson, 37 Minn. 493 (1887) ; s.c. 35 N. W. Rep. 373; State v. Lowe, 93 Mo. 547 (1887) ; s.c. 5 S. W. Rep. 889; State V. Eaton, 75 Mo. 586 (1882); Terri- tory V. Manton, 8 Mont. 95 (1888) ; s.c. 14 Pac. Rep. 637 ; Schaffer v. State, 22 Neb. 557 (1887) ; s.c. 35 N. W. Rep. 384; Slate v. Pike, 49 N. H. 399 (1870); s.c. 6 Am. Rep. 533; Fitzgerrold (,'. People, 37 N. Y. 413 (1868) ; Loeffner v. State, 10 Ohio St. .598 (1857) ; s.c. Law. Insan. 432; Sharp 1-. State, 19 Ohio, .379 (1850); State V. AVimberly, 3 McC. (S. C.) 190 (1825) ; Witt i: State, 6 Coldw. (Tenn.) 5 (1868) ; Riddle v. State, 3 Heisk (Tenn.) 401 (1872) ; Williams V. Stale, 3 Heisk. (Tenn.) 376 (1872) ; s.c. I Green Cr. Rep. 255; Fisher v. State, 10 Lea (Tenn.) 151 (1882); Henrie v. State, 41 Tex. 573 (1874); Rather v. State, 25 Te.x. App. 623 (1888) ; s.c. 9 S. W. Rep. 69; Banks V. State, 24 Tex. App. 559 (1888); s.c. 7 S. W. Rep. 327; McConnell v. State, 22 Tex. App. 354 (1886); s.c. 58 Am. Rep. 647 ; 3 S. W. Rep. 699 ; Bohaimon v. State, 14 Tex. App. 271 (1884) ; Territory v. Halliday (Utah Tr.) 17 Pac. Rep. 118 (1888) ; Com- monwealth V. Gibsoif, 2 Va. Cas. 70 (1817) ; State v. Duvall, 26 AVis. 416. Compare State v. Fooks, 20 Kan. 425 (1883); State v. Scott, 38 La. An. 387 (1886) ; Commonwealth v. Her- sey, 84 Mass. (2 Allen) 173 (1801) ; Commonwealth i\ Chapman, 65 Mass. (II Cush.) 422 (1853). A warrant charging that the prisoners " did feloniously shoot at, &c., with intent, &c., to kill and murder, sufficiently charged an assault with intent to com- mit murder," within the words used in the Ashburton treaty and statute. Reg. v. Reno et at., 4 Up. Can. Q. B. 281 . 3 People V. Vance, 21 Cal. 400 (1863) ; Fisher v. State, 10 Lea (Tenn.) 151 (1882). An indictment under the Wiscon- sin statute charged that the defendant, " contriving and intending to kill one E. D., with malice aforctliought, and from premeditated design to effect 284 HOMICIDE. [chap. XI. To charge that the defendant did lay in wait with intent to "murder"; or did feloniously "kill, slay, and murder," suffi- ciently implies malice aforethought.^ In an indictment for murder the crime is sufficiently charged under the averment that the accused " did wilfully and feloniously shoot and wound . . . with the intent . . . wilfully, feloniously, and of his malice aforethought, to kill," &c. The charge of malice in the shooting, as well as in the intent to kill, is not indispensable.^ And it has been said that in an indict- ment for murder in the second degree, the use of the words " feloniously, intentionally, wilfully, maliciously, and deliber- ately " implies necessaril}-, to the common understanding, malice aforethought, and this is all that is required to render the indictment sufficient.^ In the case of Territory v. Manton ^ the indictment charged that the defendant was the husband of the deceased, and as such owed her the duty of protection ; that she was feeble, sick, and unable to walk ; that the defendant had the ability to take care of her, but left her exposed in the nighttime to the cold and inclemency of the weather, refusing to provide her with clothing and shelter; and that he did this feloniously, wilfully, purposely, premeditatedly, and of his malice aforethought, and that she, " languishing of such exposure, leaving, and of such neglecting, omitting, and refusing to provide clothing and shelter . . . did die " ; and that thus the defendant felo- niously, wilfully, purposely, premeditatedly, and of his malice aforethought, did kill and murder her. The court held that it sufficiently charged the offence of murder in the second degree, under the Montana statute^ defining mui'der as "the unlawful killing of a human being, with malice aforethought. the death of her, the said E. D.," &c., ' i State v. Forney, 24 La. An. 191 " tlien and there a large quantity of a (1872); State v. Tlielps, 24 La. An, certain deadly poison called strych- 494 (1872). nine, knownigly, wilfully, and feloni- "- State v. Bradford, .33 La. An. 021 ously did give and administer," &c. (1881). The court held that the words "with ^ State v. Neclcy, 20 Iowa, 108 malice aforethought " properly quali- (1865). fied the words "did give," &c., and *8 Mont. 95 (1888); s.r. 14 Pac. not the words " contriving and intend- Rep. 637 (1888). ing," &c., and that the charge was & Rev. Stat. Mont., p. 358, § 18. therefore sufficient. State v. JJuvall, 20 Wis. 410 (187U). SEC. 252.] INDICTMENT AND INFORMATION. 285 either expressed or im[)lied/'' and providing that " the unLaw- ful killing may be effected by any of the various means by which death may be occasioned." Malice aforethought and intention to kill are not necessa- rily identical ; an averment of intent to kill is not alone sufficient.^ It must be also charged that the homicide was committed " feloniously " ^ and unlawfully.-^ But an indict- ment for murder is not defective because the "striking," "penetrating," and ""wounding" are not alleged to have been wilfully done, the word " wilfully " occurring a number of times in other connections.* Manslaughter being a homicide committed without malice, an averment that the killing was with malice aforethought is unnecessary,^ and so also is the word "feloniously."*' Sec. 252. Same — Premeditation autl deliberation. — An indictment for murder in the first degree, which is not charged to have been committed in the perpetration, or an attempt to perpetrate, a forcible felony, must aver, not only that the killing was done " wilfully, feloniously, and with malice aforethought," but also tliat it was done with delibera- 1 People V. Urias, 12 Cal. 325 (1859). '^ Edwards v. State, 25 Ark. 444 (18tt9). See Anderson v. State, 5 Ark. 444 (184.3) ; Fitzgerald v. Peo- ple, 49 Barb. (N. Y.) 122 (1867) ; Witt V. State, (3 Coldw. (Tenn.) 5 (1868). Compare Kiddie v. State, 3 Heisk. (Tenn.) 401 (1872) ; W^illianis V. State, 8 Heisk. (Tenn.) 376 (1872) ; s.c. 1 Gr. Cr. Rep. 255 ; Chase v. State, 50 Wis. 510 (1880) ; s.c. 7 N. W. Rep. 376. 3 State V. Seott, 38 La. An. 387 (1886) ; State v. Williams, 37 La. An. 776 (1885) ; overruling^ State v. Har- ris, 27 La. An. 572 (1875) ; State v. Tliomas, 29 La. An. 601 (1877). See People V. Davis, 73 Cal. 355 (1887) ; s.c. 15 Pac. Rep. 8; Redus v. People, 10 Colo. 208 (1887); s.c. 14 Pae. Rep. 323; Territory v. Evans (Idaho), 17 Pac. Rep. 139 ; Finn v. State, 5 Ind. 400 (1854) ; State v. Neeley, 20 Iowa, 108 (1865); Fouts v. State, 4 G. Greene (Iowa) 500 (1854) ; State v. Bradford, 33 La. An. 921 (1881); State V. Florenza, 28 La. An. 945 (1876) ; State v. Forney, 24 La. An. 191 (1872) ; State r. Phelps, 24 La. An. 493 (1872) ; State v. Lowe, 93 Mo. 547 (1887); s.c. 5 S. W. Rep. 889; State v. Eaton, 75 Mo. 586 (1882) ; Territory v. Manton, 8 Mont. 95 (1887) ; s.c. 14 Pae. Rep. 637 ; Schaffer v. State, 22 Neb. 557 (1887) ; s.c. 35 N. W. Rep. 384. Compare Commonwealth r. Herse}', 84 Mass. (2 Allen) 173 (1861) ; Commonwealth )'. Chapman, 65 Mass. (11 Cash.) 422 (1853) ; Chase v. State, 50 Wis. 510 (1880) ; s.c. 7 N. W. Rep. 376. * State V. Eaton, 75 Mo. 586 (1882). ^ State ;.'. Sundheimer, 93 Mo. 311 (1887) ; s.c. 6 S. W. Rep. .52 ; Baldwin 'v. State, 12 Neb. 61 (1881) ; s.c. 10 N. W. Rep. 463. « State r. Wimberly, 3 McC. (S. C) 190 (1825). 286 HOMICIDE. [chap. XI. tion and premeditation.^ The deliberation and premeditation must be predicated directly of the killing; and an indict- ment is not sufficient which avers only that the act from wliich death resulted was committed with deliberation and premeditation.2 And the omission is not supplied by the conclusion, "and so the jurors do say that " the prisoner, "in the manner and by the means aforesaid, purposely and of 1 Wiggins V. State, 23 Fla. 180 (1887) ; s.c. 1 So. Rep. 690; Finn v. State, 5 Ind. 400 (1854) ; State v. Shelton, G4 Iowa, 33o (1884) ; s.c. 20 N. W. Rep. 459 ; State v. Boyle, 28 Iowa, 522 (1870) ; State v. Watkins, 27 Iowa, 415 (18(59) ; State i-. McCor- mick, 27 Iowa, 402 (1809); Fonts v. State, 4 G. Greene (Iowa) 500 (18-54) ; State V. McGaffin, 36 Kan. 315 (1887) ; s.c. 13 Pac. Rep. 560 ; State w. Brown, 21 Kan. 38 (1878) ; State v. Jones, 20 Mo. 58 (1854) ; Loeffner v. State, 10 Ohio St. 598 (1857) '; s.c. Law. Insan. 432 ; Hagan v. State, 10 Ohio St. 459 (1859) ; Kain v. State, 8 Ohio St. .306 (1858) ; Fonts i'. State, 8 Ohio St. 98 (1857); Poole v. State, 58 Tenn. 288 (1872) ; White v. State, 16 Tex. 206 (1856) ; Leonard v. Territory, 2 Wash. Tr. 381 (1885) ; s.c. 7 Pac. Rep. 872. See State v. Hamlin, 47 Conn. 95 (1879) ; s.c. .36 Am. Rep. 54 ; State v. Perigo, 70 Iowa, 657 (1886); s.c. 8 Cr. L. Mag. 1-56; 28 N. W. Rep. 457 ; State v. Whitaker, 35 Kan. 731 (1886); s.c. 9 Cr. L. Mag. 42; 12 Pac. Rep. 106; State v. Duvall,36 Wis. 416 (1870). Compare People ('. Bonilla, 38 Cal. 699 (1869) ; People V. Murray, 10 Cal. .309 (18-58) ; People i: Lloyd, 9 Cal. 54 (1858) ; Re- dus V. People, 10 Colo. 208 (1887) ; Hill V. People, 1 Colo. 436 (1872); State V. Johnson, 8 Iowa, 525 (1859) ; s.c. 74 Am. Dec. .321 ; Green v. Commonwealth, 94 Mass. (12 Allen) 155 (1866) ; State v. .Johnson, 37 Minn. 493 (1887) ; s.c. 35 N. W. Rep. 373 ; State v. Lessing, 16 Minn. 75 (1870) ; State v. Crozier, 12 Nev. .300 (1877) ; State v. Thompson, 12 Nev. 140 (1877) ; Kennedy v. People, 39 N. Y. 249 (1868) ; Fitzgerald v. People, 37 N. Y. 415 (1868) ; s.c. 49 Barb. (N. Y.) 122 ; Mitchell v. State, 8 Yerg. (Tenn.) 514 (1835) ; Bohan- non V. State, 14 Tex. App. 271 (1884) ; Livingston v. Commonwealth, 14 Gratt. (Va.) 592 (1857); Bull I). Commonwealth, 14 Gratt. (Va.) 613 (1857) ; Chase v. State, 50 Wis. 510 (1880) ; s.c. 7 N. W. Rep. 376. Those of the foregoing decisions which refuse to recognize this rule, notwithstanding the fact tlint the phrase " malice aforethought " does not, in its strict legal sense, import a premeditated intention to kill the individual, are based on the grounds that the statute creates no new of- fence; that murder of the first and murder of the second degree are not two distinct crimes, the statute merely dividing murder into two degrees ; that the punishment of the higher grade of the crime is not changed ; that all which the statute does is to provide the milder punishment of imprisonment for murder of the sec- ond degree, all murder having before been punishable by death ; that the statute only specifies certain things, which if found by the jury, shall re- quire them to bring in a verdict sub- jecting the prisoner to death ; while if they are not so found, the verdict shall be one authorizing imprisonment merely. - State r. Brown, 21 Kan. .38 (1878) ; Kain r. State, 8 Ohio St. 306 (1858) ; Fonts v. State, 8 Ohio St. 98 (1857); Leonard v. Territory, 2 Wash. Tr. 381 (1885) ; s.c. 7 Pac. Rep. 872. Compare State v. Shelton, 64 Iowa, 333.(1884); s.c. 20 N. W. liep. 459. SEC. 253.] INDICTMENT AND INFORMATION. 287 deliberate and premeditated malice, did kill and mnrder" the deceased.^ An indictment charging that the defendant, of deliberate and premeditated malice, did slioot against the body of B., and thereby give to B. one mortal wound, of which mortal w^ound B. died, is not good on an indictment for murder in the first degree.^ In the case of State v. Whitaker ^ an information for mur- der in the first degree alleged, among other things, that ]\I., C, and W. did then and there unlawfully, feloniously, pur- posely, and of their deliberate and premeditated malice, make an assault upon T. ; that M. did purposely discharge and shoot off against T. a double-barrelled shot-gun, giving him a mortal wound, of which wound he died a few hours there- after; that C. and W. then and there, by the means and in manner aforesaid, aided, abetted, and assisted M. to do the acts set forth ; that M., C, and W., in the manner and by the means stated, purposely and of their deliberate and pre- meditated malice, did kill and murder T. It was held that the information taken together alleged that the killing of T. was wilful, deliberate, and premeditated. Sec. 253. Same — Specifying the degree. — The degree of murder of which the defendant may be guilty is a conclusion of law to be drawai from the facts averred and proved, and therefore it is not necessary that it be specified in the indict- ment ; * but it is not error to set out the degree,^ as such a statement may be rejected as surplusage.^ Thus it has been said that under a statute ' providing that 1 Kain v. State, 8 Oliio St. 316 Wicks v. Commonwealth, 2 Va. Cas. (1858) ; Fouts v. State, 8 Ohio St. 98 .387 (1824) ; Commonwealth v. Miller, (1857). 1 Va. Cas. 310 (1812) ; Leschi v. Ter- 2 State V.Brown, 21 Kan. 38 (1878). ritory, 1 Wash. 23 (1857). Compare 2 35 Kan. 731 (1886) ; s.c. 9 Cr. L. Smith v. State, 50 Conn. 193 (1882). Mag. 42 ; 12 Pao. Kep. 106. 5 People r. King, 27 Cal. 507 (1865) ; 4 People V. Kuif], 27 Cal. 507 (1865) ; s.c. 87 Am. Dec. 95 ; People ;•. Dolan, s.c. 87 Am. Dec. 95 ; People 1-. Dolan, 9 Cal. 576 (1858). See People v. 9 Cal. 576 (1858) ; People ('. Lloyd, Vance, 21 Cal. 400 (1863). 9 Cal. 54 (1858) ; State v. Dumphej^ 6 People v. King, 27 Cal. 507 (1865) ; 4 Minn. 4-38(1860); Territory !>.0'Don- s.c. 87 Am. Dec. 95. nell (N. M.), 12 Pac. Kep. 743 (1887) ; ' Sucli as Conn. Gen. Stat., p. 498, William v. State, 3 Heisk. (Tenn.) § 1. 376 (1872) ; s.c. 1 Gr. Cr, Rep. 255; 288 HOMICIDE. [chap. XI. in all indictments for murder " the degree of the crime charged shall be alleged," it is sufficient if, after stating the crime of the common law form, an averment be added that the accused did thereby commit murder in the first degree ; the distino-uishino: facts need not otherwise be set out.^ Where an indictment charges the defendant with the crime of manslaughter, and then proceeds to state facts which con- stitute the crime of murder, the error is favorable to the de- fendant, and he cannot complain .^ Sec. 254. Same — Charging^ killing while coinmittiug another offence. — Where the indictment avers facts suffi- cient to constitute murder in the first degree, the defendant ma}' be convicted upon proof that the homicide was committed in perpetrating or attempting to perpetrate arson, rape, bur- glary, or robbery, although the indictment makes no reference to that fact.^ But if the (?ommission of such an offence is made the basis of the charge, it must be pleaded with the same formality and particularity as if the defendant was charged solely with that crime. An averment that defendant com- mitted the homicide in attempting to perpetrate a specified offence, without showing his acts upon that occasion, states a mere conclusion of law, and is fatally defective. Thus where an indictment for murder charged that the defendant, at a stated time and place, " in and u}>on one S., . . . did commit rape, and in attempting to commit j-ape a!id in committing rape in and upon her, the said S., did kill the said S., con- trary," &c., in the case of Titus v. State,* was held to be fundamentally and fatally defective, because if it was neces- sary to show a rape as one of the constituents of the offence of murder, such crime should have been pleaded with the same formality as is requisite when it forms the sole basis of an indictment. Sec. 255. Same — Means and manner of the homicide — Averment that injury cliarged caused the death. — It is 'Smith V. State, 50 Conn. 103 353; 7 Atl. Rep. 021. See State v. (1882). Jenkins, 14 Rich. (S. C) L. 215 - Camp 1-. State, 25 Ga. G89 (1858). (1867) ; s.c. 94 Am. Dec. 132. 3 Francis v. Porter, 7 Ind. 213 * 49 N. J. L. (20 Vr.) 30 (1886) ; (1855); Titus v. State, 49 N. J. L. s.c. 9 Cr. L. Mag. 353 ; 7 Atl. Rep. 621. (20 Vr.) 36 (1880) ; s.c. 9 Cr. L. Mag. SEC. 256.] INDICTMENT AND INFORMATION. 289 indispensably necessary that an indictment for homicide shall directly aver that the death of the deceased ensued in conse- (juence of the act of the defendant charged ; ^ but an indict- ment for murder, charging that the defendant, by means stated, inflicted '' a mortal injury, to wit, a fracture three inches long on the head of " A., "of which said mortal injury, or fracture, the said " A. " then and there died," sufficiently shows what caused the death of the deceased.^ The omission of the word " wound " from the clause, " of which said mortal (wound) he, the said T., then and there died," has been held not to be a ground for arrest of judgment.'^ It is said in the case of State v. Conley"* that if, in an in- dictiuent for murder, it is alleged that the accused, with a dangerous weapon, did strike and beat the deceased and gave him mortal wounds, of which wounds he afterwards did lan- guish and die, it is unnecessary *to add " by the stroke or strokes aforesaid." And it is said that an indictment for murder, where there is a possible averment of a stab, &c., with a dirk, it sufficiently appears that a mortal wound Avas given thereby under the Avords, " giving one mortal wound," Scc.^ Sec. 256. Same — Averment of instrument or means used. — The indictment must set forth or describe the AveajDon or other instrument or means by Avhich the killing is charged to have been done, or the manner in Avhich such means Avere used,^ or should aver that the means, instruments, and Aveap- 1 People r. Lloyd, 9 Cal. 54 (1858) ; 5 Gibson v. Commonwealth, 2 Va. State V. Prather, 54 Ind. 63 (1870) ; Cas. Ill (1817). Sliepherd v. State, 54 Ind. 25 (1876) ; ^ Haney v. State, .34 Ark. 263 West 1-. State, 48 Ind. 483 (1874) ; (1879) ; Edwards v. State, 27 Ark. State I'. Conley, 39 Me. 78 (1854) ; 493 (1872) ; People v. Co.v, 9 Cal. 32 State V. Morgan, 86 N. C. 732 (1858) ; People f. Wallace, 9 Cal. 30 (1882) ; State i'. Rinehart, 75 N. C. (1858) ; State v. Taylor, 1 Houst. Cr. 58 (1876) ; Lutz v. Commonwealth, Cas. (Del.) 436 (1874) ; State v. 29 Pa. St. 441 (1857) ; State v. Wim- Townsend, 1 Houst. Cr. Cas. (Del.) berly, 3 McC. (S. C.) L. 190 (1825) ; 337 (1871) ; Guedel r. People, 43 111. Edmondson v. State, 41 Tex. 496 226 (1867) ; White v. Commonwealth, (1874); Gibsim v. Commonwealth, 2 9 Bush (Ky.) 178 (1872); State v. Va. Cas. Ill (1817). See People r. Owen, 1 Murph. (N. C.) L. 452 (1810) ; Ybarra, 17 Cal. 166 (1860); People .«.c. 4 Am. Dec. 571 ; Stale v. Jenkins, V. Steventon, 9 Cal. 273 (1858). 14 Rich. (S. C.) L. 215 (1867) ; s.c. 2 West r. State, 48 Ind. 483 (1874). 94 Am. Dec. 132; Witt r. State, 6 3 State V. Rinehart, 75 N. C. 58 Coldw. (Tenn.) 5 (1868); State r. (1876). Williams, 36 Tex. 352 (1872); Drye « 39 Me. 78 (1854). v. State, 14 Tex. App. 185 (1884). 19 290 HOMICIDE. [chap. xr. oils are to the jurors unknown ; ^ but it is now the weight of opinion that the proof need not conform strictly to the averment, either as to the means used, or the manner of using them.2 And where an indictment for murder charges, in a See Redd v. State, 69 Ala. 255 (1881) Ilodgers v. State, 50 Ala. 102 (1874) People V. Clioiser, 10 Cal. 3i0 (1858) Peterson v. State, 47 Ga. 524 (1873) Coates V. People, 72 111. 303 (1874) M^arner v. State, 114 Ind. 137 (1887) ; s.c. 16 N. E. Rep. 189 ; Dennis v. State, 103 Ind. 142 (1885) ; s.c. 7 Cr. L. Mag. 172; 2 N. E. Rep. 349; 5 Am. Cr. Rep. 469; Epps v. State, 102 Ind. 539 (1885) ; s.c. 5 Am. Cr. Rep. 517; 1 N. E. Rep. 491 ; Merrick v. State, 63 Ind. 327 (1878) ; Veatch v. State, 56 Ind. 584 (1877) ; s.c. 26 Am. Rep. 44 ; Meiers v. State, 56 Ind. 330 (1877) ; Willey v. State, 46 Ind. 303 (1874) ; Ward v. State, 8 Elackf. (Ind.) 101 (1846) ; State v. Dillon, 74 Iowa, 653 (1888) ; s.c. 38 N. W. Rep. 525; State v. Smith, 32 Me. 369 (1851) ; s.c. 54 Am. Dec. 578; Com- monwealth V. Martin, 125 Mass. 394 (1878) ; Commonwealth v. Stafford, 66 Mass. (12 Cusli.) 619 (1853) ; Commonwealth v. Webster, 59 Mass. (5 Cush.) 295 (1860) ; s.c. 52 Am. Dec. 711 ; Turns v. Commonwealth, 47 Mass. (6 Mete.) 224 (1843) ; State V. Lautenschlager, 22 Minn. 514 (1876) ; State v. Bilansky, 3 Minn. 246 (1859) ; Goodwyn v. State, 12 Miss. (4 Smed. & M.) 520 (1845) ; State V. MuDaniel, 94 Mo. 301 (1887) ; s.c. 7 S. W. Rep. 634 ; State v. Pay- ton, 90 Mo. 220 (1886) ; s.c. 2 S. W. Rep. 394 ; Lester v. State, 9 Mo. 658 (1846) ; Territory v. Young, 5 Mont. Tr. 242 (1884) ; s.c. 5 Pac. Rep. 248 ; Long c. State, 23 Neb. 33 (1888) ; s.c. 36 N. VV. Rep. 310 ; Olive v. State, 11 Neb. 1 (1881) ; s.c. 7 N. W. Rep. 444; State V. Burke, 54 N. II. 92 (1873) ; S.c. 2 Green Cr. Rep. 365; State v. F().\, 25 N. J. L. (1 Dutch.) 566 ( 1856) ; Cox V. People, 80 N. Y. 500 (1880); People V. Colt, 3 Hill (N. Y.) 432 (1842) ; Shay v. People, 4 Park. Cr. Cas. (N, Y.) 363 (1860) ; Colt v. Peo- ple, 1 Park. Cr. Cas. (N. Y.) 611 (1842) ; State v. Gould, 90 N. C. 658 (1884) ; State v. Parker, 65 N. C. 453 (1871) ; State v. Williams, 7 Jones (N. C.) L. 448 (1860); s.c. 78 Am. Dec. 248 ; State v. Smith, Phil. (N. C.) L. 340 (1867) ; State i-. Freeman, 1 Speers (S. C.) L. 57 (1842) ; Williams V. State, 42 Tex. 392 (1875) ; Gonzales r. State, 5 Tex. App. 584 (1879) ; Pur- year V. Commonwealth, 83 Va. 51 (1887); s.c. 1 S. E. Rep. 512 ; Gibson V. Commonwealth, 2 Va. Cas. Ill (1817) ; United States v. Holmes, 1 Wall. Jr. G. C. 1 (1842). Compare People V. Hong Ah Duck, 61 Cal. 387 (1882) ; People v. Cronin, 34 Cal. 191 (1867) ; People v. King, 27 Cal. 507 (1805); s.c. 87 Am. Dec. 95; People V. Steventon, 9 Cal. 273 (1858) ; Dukes V. State, 11 Ind. 557 (1858) ; State v. Hartley, 34 La. An. pt. 1, 147 (1882) ; State V. Shay, 30 La. An. pt. 1, 114 (1878) ; State v. Morrissey, 70 Me. 401 (1879) ; People v. Beniis, 51 Mich. 422 (1883); s.c. 16 N. W. Rep. 94; Newcomb v. State, 37 Miss. 383 (1859) ; State V. Kilgore, 70 Mo. 546 (1879); State r. McLane, 15 Nev. 345 (1880); Tenorio v. Territory, 1 N. Mex. 279 (1859) ; Volkavitch v. Commonwealth (Pa.), 12 Atl. Rep. 84 (1888); Goer- sen V. Commonwealth, 99 Pa. St. 388 (1882) ; State v. Sloan, 65 Wis. 647 (1886). 1 Willey r. State, 46 Ind. 363 (1874); Commonwealth v. Martin, 125 Mass. 394 (1878); Commonwealth v. Web- ster, 59 Mass. (5 Cush.) 295 (1850) ; s.c. 62 Am. Dec. 711; Olive r. State, 11 Nev. 1 (1881) ; State v. Burke, 54 N. H. 92 (1873) ; s.c. 2 Green Cr. Rep. 365; Cox r. People, 80 N. Y. 500 (1880); Colt V. People, 1 Park. Cr. Cas. (N. Y.) 611 (1842). 2 jiogers r. State, 50 Ala. 102 (1874);"^ Stale v. Smith, 32 Me. 369 (1851); s.c.54Am. Dec. 578; Stater. SEC. 257.] INDICTMENT AND INFORMATION. 291 single count, th;it the mortal injuries were inflicted by differ- ent means or instruments, as by shooting, striking, and burn- ing, the prosecution cannot be forced to elect upon which of tlieni a conviction will be sought.^ In the case of Rogers v. State ^ the indictment alleged that the prisoner killed the deceased " by cutting his head off. with a knife, or with an axe," and the proof was, that the deceased came to his death by some sort of cutting about the neck, and a charge to the jury that if they were convinced, beyond a reasonable doubt, that the deceased "came to his death by the hands of the defendant, it matters not what sort of weapon he was killed with, or how the weapon was used," was held to be correct. It need not be averred that the weapon was deadly or dan.'^erons, or was one recognized by the law to be deadly or dangerous,^ except in those cases where the defendant is charged with murder in a special degree under a statute which uses those words in defining the crime, in which case the words of the statute must be followed.** Where the in- dictment contains an averment of malice aforethought, it is not necessary to state that the wound was not inflicted while deceased was undergoing a surgical operation ; ^ and it is not necessary to mention a disease which would soon have practically caused the death of the deceased.*^ Sec. 257. Same — Alleging weapon in defendant's hand. — While it is usual and proper to allege in an indictment for murder that the instrument or Aveapon with Avhich the homi- cide was committed was in the defendant's hand at the time of the killing, yet it is not necessary to the validity of the in- dictment that such an allegation be made, for the reason that such allegation is not necessary to a full description of the crime ; neither is it necessary in order to inform the defend- Lautenschlager, 22 Minn. 514 (1876); i Gonzales r. State, 5 Tex. App. State V. Fox, 25 N. J. L. (1 Dutcli.) 584 (1879). 566 (1856); People v. Colt, .3 Hill 2 50 Ala. 102 (1874). (N. Y.) 432 (1842) ; State v. Gould, 3 State r. McDaniel, 94 Mo. 301 90 N. C. 658 (1884). Compare Giiedel (1887) ; s.c. 7 S. W. Rep. 634. V. People, 43 111. 226 (1867) ; State v. ■* Tenorio v. Territory, 1 N. Mex. Taylor, 1 Iloust. Cr. Gas. (Del.) 4-36 270 (1859). (1874) ; State v. Townsend, 1 Houst. ^ Merrick v. State, 63 Ind. 327 Cr. Gas. (Del.) 337 (1871); State v. (1878). Kilsrore, 70 Mo. 546 (1879) ; Witt v. '• Commonwealth v. Fox, 73 Mass. State, Coldw. (Tenn.) 5 (1868). (7 Gray) 585 (1856). 292 HOMICIDE. [chap. XI. ant of the particulars of tlie charge which he is to meet ; and, if inserted, need not be proved.^ It not being necessary to allege tliat the defendant held the instrument or weapon in his hand at tlie time of the killing, it follows naturally that should the indictment attempt to set out this fact and do so imperfectly, this will not affect the validity of the indictment. Thus in Ward v. State ^ an indictment for murder alleged that the defendant, with a certain gun which he in botli hands then and there held, &c., feloniously did shoot, «&;c. And the court held that the omission of the word " his," before the word "hands," was no objection to the indictment. And in Shay v. People ^ the indictment charged " that the said S., — a certain knife which the said S. in his right hand then, i&c, then and there wilfully, &c., did beat, stab, &c., giving unto the said J. L. then and there with the knife aforesaid in and upon the forehead of him, the said J. L., one mortal wound," »&c., &c. On error it was held that the clerical omission of the word " with " before the words " a certain knife," did not vitiate the indictment, the offence being sufficiently charged in the other clauses. Sec. 258. Same — Charging killing witli gun or pistol. — In charging murder with a gun or pistol the manner of killing must be set out. Thus an indictment for murder which alleged that the prisoner did make an assault with a gun, &c., charged with gunpowder and two leaden bullets, which said gun he " did shoot off and discharge," sufficiently avers that the gun was shot off, and the contents discharged.* But an indictment which cliarges that the defendant " did unlawfully . . . kill and murder J. B., with a gun loaded with gunpowder and leaden balls, ami held in the luind" of the said defendant, is fatally defective in failing to indicate the manner of killing.^ 1 Dennis v. State, lOO Iiid. 142 ed.) 92; 1 Arcli. Cr. PI. (10th ed.) (1885); s.c. 5 Am. Cr. Kep. 409; 7 407. Cr. L. Map. 172; 2 N. E. Hep. 849; '^ 8 Rlackf. (Ind.) 101 (1840). Dukes V. State, 11 Ind. 5.J7 (1858); M p^j-k. Cr. Cas. (N. Y.) 3G3 Connnonwealtli r. Costley, 118 Ma.«s. (1800). 1 (1875) ; 'IVrritnry r. Youns, 5 Mont. * State v. Freeman, 1 Speers (S. C.) Tr. 242 (1884) ; s.c. 5 Pac. Hep. 248. L. 57 (1842). See 2 Hawk P. C, p. 28, §§70-84; •''' Ilaney v. State, o4 Ark. 203 1 East P. C. 341; 1 Stark Cr. PI. (2d (1879). SEC. 260.] INDICTMENT AND INFORMATION. 293 It is not necessary to aver in so many words, that the pistol used was loaded with powder and ball, or that the fatal wound was intlicted with a ball ; ^ an indictment describing the weapon as a " loaded pistol " is sufficient.^ And an alle- gation, in an indictment for murder, that the deceased came to his death by " one leaden bullet discharged from said shot- gun," &c., is supported by evidence that he came to his death by means of the discharge, by the accused, of a shot-gun loaded with buck shot.^ But under an indictment charging murder, committed by shooting from a gun by means of powder and shot, the people cannot be permitted to prove a murder committed by striking the deceased with a gun upon the head."* And where a murder is charged to have been committed by shooting with a gun, the prosecution cannot be permitted to show that the act was done by choking with the hands.^ Sec. 259. Same — Charging killing with bludg^eon or stick. — In an indictment for murder committed with a stick or bludgeon it is sufficient to describe the weapon as a " cer- tain wooden stick of no value," without stating its length or thickness, so as to show that it was a deadly weapon. ^ Where the indictment charged the murder to have been committed with a " bludgeon," and the testimony left it in doubt as to Avhether death was j)roduced by a blow with a bolt or club, a charge that if death was produced by a blow with a blud- geon, bolt, or club, would be sufficient as to the manner of producing death, is correct.'' Sec. 260. Same — Chargingr killing by strangulation. — An indictment for murder which charges that the defendant unlawfully and wiili malice aforethought did kill the de- ceased " by strangulation, in this, to wit : that he choked her to death," is thought to be sufficiently definite as to the de- scription of the means employed in perpetrating the killing.^ 47 Ga. 524 5 Long v. State, 25 Neb. 3.3 (1888); s.c. 86 N. W. Uep. 310. lO^Cal. 310 « State v. Smitli, Phil. (N. C.) L. 340 (1867). 12 Miss. (4 ' Lonsi r. State, 23 Neb. 33 (1888); s.c. 36 N. W. Rep. 310. 43 III. 226 » Kedd v. State, 69 Ala. 255 (1881); s.c. 68 Ala. 492. The indictment in ^ Peterson V. State, (1873). - People V. Choiser, (1858). 3 Goodwyn V. State, Snied. & M.) 520 (1845) * Guedel v . People, (1867). 294 HOMICIDE. [chap. XI. Sec. .2G1. Same — Charging killing by poisoning — Quan- tity used. — An indictment charging murder by administering arsenic, or other known poison, need not state the quantity used.^ Under some statutes a charge of a wilful and premedi- tated killing, by giving poison, is sufficient, without charging that the poison was taken into the stomach of the deceased, whereof he, at a specified time, died.^ Sec. 262. Same — Description of wound. — It is not nec- essary to designate the part of the body of the deceased upon which the alleged mortal blow was inflicted ; ^ and where it is designated, the proof need not strictly conform to the aver- ment, it being competent to show that the wound was in- flicted upon any part of the body of the deceased.* Neither is it necessary to state the dimensions of the wound or bruise.^ this case was under the Alabama Code of 1876, and conforms substantially to the form prescribed thereby. See Ala. Code, 187G, p. 991, form 2. 1 Puryear i". Commonwealth, 83 Va. 51 (1887); s.c. 1 S. E. Kep. 512. 2 Bilansky v. State, 3 Minn. 427 (1859). 3 People I'. Judd, 10 Cal. 313 (1858); People V. Steventon, 9 Cal. 273 (1858); Jones V. State, 35 Ind. 122 (1871); Whelchell r. State, 23 Ind. 89 (18(34); Cordell )•. State, 22 Ind. 1 (1804); Dukes V. State, 11 Ind. 557 (1858); s.c. 71 Am. Dec. 370; State v. Yordi, 30 Kan. 221 (1883); s.c. 2 Pac. Hep. 161 ; State v. Sanders, 76 Mo. 35 (1882); State v. Blan, 69 Mo. 317 (1879) ; State v. Edmundson, 64 Mo. 398 (1877); State v. Moses, 2 Dev. (N. C.) L. 452 (1830); Sanchez v. People, 22 N. Y. 147 (1860); s.c. 4 Park. Cr. Cas. (N. Y.) 535; Alexander v. State, 3 Heisk. (Tenn.) 475 (1872); s.c. 1 Green Cr. Kep. 701 ; Wilkerson v. State, 2 Tex. App. 255 (1878). See People v. Aro, 6 Cal. 207 (1856) ; s.c. 65 Am. Dec. 503 ; Bryan v. State, 19 Fla. 864 (1883); Dias v. State, 7 Blackf. (Ind.) 20 (1843); s.c. 39 Am. Dec. 448; Wise V. State, 2 Kan. 419 (1864) ; s.c. 85 Am. Dec. 595 ; Commonwealth v. Woodward, 102 Mass. 155 (1869) State V. Waller, 88 Mo. 402 (1885) State V. Ramsey, 82 Mo. 133 (1884) State V. Henson, 81 Mo. 384 (1884) State V. Jones, 20 Mo. 58 (1854); State V. Carter, N. C. Conf. 210 (1801) ; State V. Owen, 1 Murph. (N. C.) 452 (1810) ; s.c. 4 Am. Dec. 571 ; State V. Jenkins, 14 Rich. (S. C.) L. 215 (1867) ; s.c. 94 Am. Dec. 132; Nelson V. State, 1 Tex. App. 41 (1877). * Bryan r. State, 19 Fla. 864 (1883); State ;;. Waller, 88 Mo. 402 (1885) ; State V. Edmundson, 64 Mo. 398 (1877) ; State v. Jenkins, 14 Rich. (S. C.) L. 215 (1867); s.c. 94 Am. Dec. 132 ; Nelson v. State, 1 Tex. App. 41 (1877). Compare State v. Hoyt, 13 Minn. 132 (1868). 5 People V. Steventon, 9 Cal. 273 (1858) ; Stone v. People, 3 111. (2 Scam.) 326 (1840) ; Dias v. State, 7 Blackf. (Ind.) 20 (1843); s.c. 39 Am. Dec. 448; West v. State, 48 Ind. 483 (1874) ; Jones v. State, 35 Ind. 122 (1871) ; Dukes v. State, 11 Ind. 557 (1858); s.c. 71 Am. Dec. 370; Dillon f. State, 9 Ind. 408 (1857) ; State v. Conley, 39 Me. 78 (1854) ; Common- wealth V. Chapman, 65 Mass. (11 Cush.) 422 (1853) ; State r. Sanders, 76 Mo. 35 (1882) ; State r. Blan, 69 Mo. 317 (1879) ; State v. Oa-en, 1 SEC. 262.] INDICTMENT AND INFORMATION. 295 At common law it was necessary to state, in an indictment for murder, the part of the body on which the blow was in- flicted,^ and some cases go to the extent of holding that the indictment must charge the dimensions of the wound ; ^ but the better opinion now appears to be that such is not neccs- sar}', for the very sufficient reason that it is not requisite to inform the defendant of the charge he is to meet. Thus it was said, in the case of State v. Crank,^ that a sufficient de- scription of the injury from which death arose is afforded by the phrase " one mortal bruise " ; nor is it necessary, if the injury be on the head, that the particular portion of the head be mentioned in the indictment. And in Commonwealth v. Woodward * an indictment for murder which averred that the death ensued from " one mortal wound " given on the left side of the head of the deceased by a stroke with a whip- stock, was held sufficient without a more specific description of the wound. The court say : " The only question argued, upon the motion to quash the indictment, relates to the sufficiency of the description of the wound from which death is alleged to have ensued. In the first count, it is described only as ' one mortal wound ' in and upon the left side of the head. The defendant's counsel argues that this is not sufficient, because it is not made to appear that the wound was not an incised wound ; and if it was an incised Avound, it should liave been described by its length, breadth, and depth. In the case of Commonwealth v. Chapman,^ relied upon to sus- tain this position, the indictment, which contained no other description of the wound than in the present case, was held to be sufficient. The report states that ' the court distin- guished this from an incised wound, because the indictment alleged that the defendant " did strike and bruise " the de- ceased.' But that allegation, although it preceded, did not form any part of tlie description of the wound resulting from Murph. (X. C.) L. 452 (1810) ; s.c. 2 state v. Owen, 1 Murpli. (N. C) 4 Am. Dec. 571; Smith v. State, 43 L. 452 (1810) ; s.c. 4 Am. Dec' 571. Tex. 643 (1875) ; Gelirke v. State, 13 3 2 Bail. (S. C.) 06 (1831) ; s.c. 23 Tex. 568 (1855); Lazier v. Comtnon- Am. Dec. 117. wealth, 10 Gratt. (Va.) 708 (1853) ; * 102 Mass. 155 (1869). See to Turner's Case, 1 Lew. C. C. 177 (1830). same effect, Commonwealtli v. McAfee, 1 Jones V. State, 35 Ind. 122 (1871); 108 Mass. 458 (1871). Cordell v. State, 22 Ind. 5 (1864). 5 65 Mass. (11 Cush.) 422 (1853). £90 HOMICIDE. [chap. XI. the blow, which was alleged to have been given with an axe. If the description of the wound in this count may be aided in the same way, by reference back to the allegations it contains, which are descriptive of the assault, we think it is fairly to be inferred that the wound, given upon the head with a whip- stock, must have been a bruise or contusion, and not an in- cised wound, and so, within the principle of that case, suffi- ciently described. " But if this were not a sufficient answer, and assuming, as is suggested in Commonwealth v. Chapman,^ that, ' in the case of a simple incised wound, the authorities would support the position that a description' is necessary,' we are of opinion that the tendency of modern jurisprudence and legislation is such as to justify, if not to require, a departure from the old rule of pleading, in a matter which is, practically, so nearly one of mere form." The case of Commonwealth v. Chapman ^ cannot fairly be added to the authorities in favor of the sup- posed rule ; for it is manifest, from the manner of the decision there, that the court did not intend to strengthen the rule by the weight of its sanction. Several English cases question, 'if they do not deny, the existence of the rule, both upon the gi'ound of authority and of good sense.^ We fail to discover any sound principle, on which tire rule can stand, to justify its perpetuation. We do not suppose that, in the case of Commonwealth v. Chapman,^ the indictment would have failed for a variance, if the proof had been of an incised wound. Where the blow was with a blunt instrument, which broke through the skin, the wound would be properly de- scribed either as a bruise or an incised wound. Under the English statute,^ against injuries with intent to murder, maim, &c., the proof of a " wounding " was required to be of an incision through the skin.* A particular description of the wound cannot be necessary to enable the defendant to know for what injury he is called upon to answer. If required for this purpose, it would be valueless, because the allegation need not be accurate, in cor- 1 65 Mass. (11 Cush.) 422 (1858). v. Tmiilinson, Car. & P. 370 (1834) ; 2 Rex V. Mosley, 1 R. & M. C. C. s.c. 25 Eng. C. L. 479. 97 (1825) ; s.c. 1 Lew. C. C. 189; Rex « St. 9 Geo. IV., c. 31. 4 Rose. Grim. Ev. (Gtlied.) 890. SEC. :i62.] INDICTMENT AND INFORMATION. 207 respoiidence with the proof. The statement of the general nature and locality of the wound, and the instruinent or means by which it was inflicted, are all that can be required for this purpose. 1 The reason most frequently assigned for the requirement is, that it is necessary in order that it may be made to appear from the indictment that the wound was sufficient to cause death. If this is not essential in case of a bruise or contusion, there is no good reason why it should be so in case of an in- cised wound. The indictment must allege it to be a mortal wound, and that death ensued therefrom; and if the testi- mony sustains those allegations, tlie homicide is proved, how- ever limited the extent of the incision. Notwithstandingf the frequent repetition of this reason for the rule, we are aware of no authority which has ever attempted to define the least extent in length, breadth, or depth of incision which would be sufficient, and which it is necessary to allege, in order to make it appear that the wound was sufficient to cause death, or to define the principle upon which the court can determine upon its sufficiency as a question of law.^ A variance between the wound as laid in the indictment and as shown by the 'evidence is fatal to the indictment in those cases where the variance is as to a vital matter. But where the indictment charged a murder to have been com-, mitted by shooting in the left breast, and it appeared that three shots were fired, one immediately after the other; that the wound inflicted by either would have been mortal ; but that death ensued at once from the shot that took effect in the head, it was held that the variance was immaterial.'^ Repugnancy in an indictment, where the repugnancy is in a material part thereto, is fatal. Therefore an indictment for murder, which charges that the accused struck the de- ceased with an axe on the left side of the head and over the left temple, giving to him then and there with said axe, on the right side of the head, and over the right temple, a mortal wound, is said to be bad.^ An allegation in an indictment for murder in the first 1 See Commonwealth v. Woodard, 3 pjaz ,.. State, 7 Blaekf. (Ind.) 20 102 Mass. 155 (1809). (1843) ; s.c. 3t) Am. Deo. US. ' Bryan v. State, 19 Fla. 864 (1883). 298 HOMICIDE. [chap. XI. degree that defendant "did strike, stab, and thrust in and upon the right side of him, the said F., and also in and upon the back near the left shoulder of the body, giving to the said F., then and there, with the knife aforesaid, in and upon the rio-ht side, and also upon the back near the left shoulder of liim, the said F., one mortal wound," sufficiently locates the wound, and will not be bad for repugnancy .^ And on aver- ments in an indictment for murder that the striking and wounding were at the heart, and that the mortal wound so given was through the body, has been said not to be repug- nant.2 Sec. 263. Time of act causing- death. — The indictment must set forth the time of the alleged acts causing the death ;3 but where it alleges the time of making the assault, the aver- ment need not be repeated with specific reference to the mortal blow.^ But a clerical error in stating the time, which is clearly apparent, and not prejudicial to the defendant, will not be ground for an arrest of judgment.^ Thus under a statute Ramsey, 82 Mo. 133 1 State (1884). 2 State V. Henson, 81 Mo. 384(1884). 3 See People )-. Cox, 9 Cal. 32 (1858) ; People v. Wallace, 9 Cal. 30 (1858); Thomas v. State, 71 Ga. 44 .(1883); Welch v. State, 104 Ind. 347 (1885); State v. Kane, 33 La. An. 1269 (1881) ; State v. Polite, 33 La. An. 1016 (1881) ; State v. Hobbs, 33 La. An. 226 (1881) ; State v. Conley, 39 Me. 78 (1854) ; Commonwealth v. Barker, 66 Mass. (12 Cush.) 186 (1853) ; State v. Ryan, 13 Minn. 371 (1868) ; Woodsides v. State, 3 Miss. (2 How.) 655 (1837); State v. Mc- Daniel, 94 Mo. 301 (1887) ; State v. Smidheimer, 93 Mo. 311 (1887) ; s.c. 6 S. W. Rop. 52; State v. Eaton, 75 Mo. 586 (1882) ; State v. Ward, 74 Mo. 253 (1881); State v. Testerman, 68 Mo. 408 (1878) ; State v. Mayfield, 66 Mo. 125 (1877) ; State v. Sides, 64 Mo. 385 (1877); State v. Taylor, 21 Mo. 477 (1855) ; Lester v. State, 9 Mo. 658 (1846) ; State v. Huff, 11 Nev. 17 (1876) ; State v. Ilaney, 67 N. C. 467 (1872); State v. Shepherd, 8 Ired. (N. C.) L. 195 (1847) ; State v. Baker, 1 Jones (N. C.) L. 267 (1854) ; State V. Cherry, 3 Murph. (N. C.) L. 7 (1819) ; State v. Stewart, 26 S. C. 125 (1886) ; State v. Huggins, 12 Rich. (S. C.) L. 402 (18(50) ; Edmondson v. State, 41 Tex. 496 (1874); O'Connell V. State, 18 Tex. 343 (1857); Hardin V. State, 4 Tex. App. 355 (1879) ; Liv- ingston V. Commonwealth, 14 Gratt. (Va.) 592 (1857) ; Lazier?-. Common- wealth, 10 Gratt. (Va.) 708 (1853) ; Commonwealth v. Ailstock, 3 Gratt. (Va.) 650 (1846). Compare People v. Aro, 6 Cal. 207 (1856) ; s.c. 65 Am. Dec. 503; People v. Kelly, 6 Cal. 210 (1856) ; State v. Williams, 30 La. An. pt. II., 843 (1878). ■• Commonwealth v. Barker, 66 Mass. (12 Cush.) 186 (1853) ; State v. Cherry, 3 Murph. (N. C.) L. 7 (1819). See Welch v. State, 104 Ind. 347 (1885) ; s.c. 3 N. E. Rep. 850; Wood- sides V. State, 3 Miss. (2 How.) 655 (1837) ; State r. Taylor, 21 Mo. 477 (1855) ; State v. Stewart, 26 S. C. 125 (1886); State v. Huggins, 12 Rich. (S. C.) L. 402 (1860); 'S.c. 1 S. E. Rep. 468. 5 State V. McDanicl, 94 Mo. 301 SEC. 263.] INDICTMENT AND INFORMATION. 290 providing that no indictment shall be deemed invalid, or judgment thereon arrested, for stating the offence to have been committed on a day subsequent to the finding of the in- dictment, an indictment found in May, 1886, charged that the defendant assaulted and cut the deceased on December 25, 1886, and that the deceased died on December 25, 1885 ; and the court held that as it was clear that the insertion of 1886 for 1885 was a clerical error, judgment on it would not be arrested.^ In Commonwealth v. Ailstock^ an indictment for murder stated that the mortal wound was inflicted on the 7th of No- vember, 1845, and that the deceased languished on until the 8th of November in the j^ear aforesaid, and then said, " on which 8th day of May, in the year aforesaid, the deceased died." The court held that the insertion of May for November was a mistake, apparent on the face of the indictment, and Avould not exclude proof of the death subsequent to the 7th of November, or be cause for arresting the judgment. It is a general rule that the proof need not strictly con- form to the averments in the indictment.^ Thus where a conviction for murder was taken to the supreme court, and the sole ground relied upon for the reversal of the sentence was that the indictment charged the crime to have been com- mitted March 19, 1880, while the evidence showed it to have been committed March 19, 1881, it was held that the court had no jurisdiction to review the evidence, as this would be trying the case as to the facts of the appeal, but that, in any event, the variance was immaterial.'* And where an in- dictment for murder alleged that the injury was inflicted on the 14th of March, 1856, and that the deceased died on the 19th of the same month, and the government proved that the injury was inflicted on the 8th of March, and that the death ensued on the loth of the same month, the variance was held to be immaterial.^ (1887); s.c. 7 S. W. Rep. 634 ; Com- 1269 (1881); State v. Polite, 33 La monwealth i'. Ailstock, 3 Gratt. (Va.) An. 1016 (1881) ; Livingston v. Com- 650 (1846). monwealtii, 14 Gratt. (Va.) 592 (1857). 1 State ;;. McDaniel, 94 Mo. 301 * State v. Polite, 33 La. An. 1016 (1887) ; s.c. 7 S. W. Rep. 634. (1881). 23 Gratt. (Va.) 650 (1846). ^ Livingston v. Commonwealth, 14 3 O'Connell v. State, 18 Tex. 343 Gratt. (Va.) 592 (1857). (1857). See State v. Kane, 33 La An. 800 HOMICIDE. [chap. XI. Sec. 264. Time of the death. -^- The date of death shoukl be set forth as well as the date of the killing, in order to show that the death took place within a year and a day from the com- mission of the act causing it.^ An averment that the defendant killed the deceased upon a certain day sufficiently implies that the latter died on the day named ; ^ and so does a statement, coming after the averment of the time of the act causing the death, that the deceased " did then and there die " ; or " did then and there instantly die " ; ^ or that he " languished, and lan- guishing, immediately did die."* But an averment that "of said mortal wounds" the deceased "did immediately languish, and languishing, did die," fails to show how long after the mortal injury the death occurred, and, therefore, renders the indictment fatally defective.^ The common law requirement of an allegation that death resulted from the injury within a year and a day has been said to be sufficiently complied with by the words, " giving the said W. then and there two mortal wounds, of which mortal wounds so given as aforesaid, the said W. did instantly die," the words "so," &c., obviating any need of repeating " then and there " before " instantly." ^ An indictment of murder, charging the infliction of a wound on a certain day, and that the deceased " did then 1 People V. Cox, 9 Cal. 32 (1858) ; the 9th of December, of which wound, People r. Wallace, 9 Cal. 30 (1858); she, on the said 14th of December, People y. Con ley, 39 Me. 78 (1854); died. Held, that the word "said" State ('. Sundheimer, 93 Mo. 311 was a siirplusa!j;e, but that it did not (1887) ; State v. Mayfield, (>() Mo, affect the indictment. Lazier v. Coni- 125 (1877); Lester ?;.' State, 9 Mo. monwealth, 10 Gratt. (Va.) 708 (1853). 658 (1846); State r. Huff, 11 Nev. 2 Thomas v. State, 71 Ga. 44 17 (1870) ; Edmondson r. State, 41 (1883) ; State v. Ryan, 13 Minn. 371 Tex. 496 (1874). See Thomas r. State, (1868). Compare State v. Huff, 11 71 Ga. 44 (1883); State v. Ryan, 13 Nev. 17 (1876). Minn. 376 (1868) ; State v. Ward, 74 3 Woodsides v. State, 3 Miss. (2 Mo. 253 (1881) ; State v. Testerman, Hnw.) 655 (1837) ; State v. Ward, 74 68 Mo. 408 (1878) ; State r. Sides, Mo. 253 (1881) ; State v. Taylor, 21 64 Mo. 385 (1877) ; State i'. Haney, Mo. 477 (1855) ; State v. Haney, 67 67 N. C. 467 (1872) ; State v. Raker, N. C. 467 (1872) ; State v. Raker, 1 1 .Jones (N. C.) L. 267 (1854) ; Hardin Jones (N. C.) L. 267 (1854) ; State r. V. State, 4 Tex. App. 355 (1879); Hu{j: LaTiion, nient for murder. AYalker r. State, 3 Hawks (N. C.) I.. 175 (1824). Com- 14 Tex. App. 609 (1884). pare Noles v. State, 24 Ala. 672 (1854). 302 HOMICIDE. [chap. XI. the indictment must show in which county the charge is brought, if it be allowable to bring it where the death took place.i It is not necessary to state the precise locality within the county .2 And it is competent for the legislature, by stat- ute, to dispense with the averment in an indictment for mur- der, that the offence was committed within the body of the county in which the indictment was found, and to require that fact to be shown by the evidence.^ It is thought that an allegation that the killing was committed in the county of the indicting couLt is presumed to be true, if not denied by plea in abatement.* It has been said that an indictment for murder which states that A. B., late of Bladen County, &c., with force and arms, in the county aforesaid, &c., contains a sufficient description of the place where the murder was alleged to have been com- mitted.^ In State v. Gessert^ the indictment charged the de- fendant with committing the crime of murder by feloniously, &c., inflicting upon D., &c., on August 28, 1874, in W. county, a stab or wound, of which, upon the same day, said D, died in the county of P. ; and the court held that it charged the com- mission of the offence in the county of W. In the case of State v. Taylor '' an indictment for aiding, &c., the commission of a murder, there was no time and place to the averment of the aiding, &c., but time and place were alleged to the assault, stroke, and death, and it was then averred that the prisoners were then present aiding and abet- ting, and the court held that the venue was sufficiently laid.^ Sec. 267. Same — Under federal statutes. — An indict- ment under the federal statutes must contain averments suffi- cient to show that the act was committed in or upon some particular place or vessel within the jurisdiction of the federal courts. Thus in the case of the United States v. Demarchi ° 1 Rex V. Hargrave, 5 Car. & V. 170 * State v. Outerbridge, 82 N. C. (1831). 017 (1880). •^ People V. Kobinson, 17 Cal. 363 '" State v. Lamon, 3 Hawks (N. C.) (18G1). The omission of the word L. 175 (182^). "county" after name of county is « 21 Minn. 369 (1875). cured by Mo. Kev. Stat. § 1821. ^ 21 Mo. 477 (1855). State V. Waller, 88 Mo. 402 (1885). ^ See Woodsides v. State, 3 Miss. 3 Noles V. State, 24 Ala. 072 (1854). (2 How.) 655 (1837). " 5 Blatchf. C. C. 84 (1862). SEC. 269.] INDICTMENT AND INFORMATION. 303 it was held that in an indictment for murder, under section eight of act of Congress of April 30, 1790, it is sufficient to allege that the crime was committed on a vessel owned by American citizens, without alleging that the vessel was American. But in an indictment for piratical murder, where the court has jurisdiction over the crime, when committed on board a vessel having no nationality, the nationality of the vessel need not be alleged, nor its possible foreign nationality negatived.^ And an indictment against a captain of a steam- boat, under the United States statute,^ which alleges that the steamboat was, at the time, navigating the Chesapeake Bay between Baltimore and Annapolis, in substance alleges that the steamboat was being used on navigable waters of the United States.^ Sec. 268. Averring place of the death. — The indictment must show the place of death, as well as the place of the act causing it ; * and it must allege, with that degree of certainty which excludes every other indictment, that the murdered person died in the county where the indictment was found.^ Where it is stated that the assault and the death occurred at the same place, the indictment is not supported by proof that the deceased died at a different place. ^ An averment, coming after the description of the assault, stating that the deceased '• did then and there instantly die," sufficiently shows the place of death;'' but not so if the words "then and there" are omitted from such sentence.^ Sec. 269. Description of deceased — Setting out Chris- tian name — Idem sonans. — It is not now necessar}^ for an indictment for felonious homicide to charge that the deceased 1 United States v. Deniarchi, 5 271 ; State v. Lakey, 65 Mo. 217 Blatchf. C. C. 84 (1862). (1877) ; State v. Coleman, 17 S. C.473 - U. S. Kev. Stat. § 5344. (1882). Compare Roach v. State, 34 3 United States u.Beacham, 29 Fed. Ga. 78(1864); State r. Bowen, 16 Rep. 284 (1886). Kan. 475 (1876) ; State v. Potter, 15 4 People r. W^allace, 9 Cal. 30 Kan. 302 (1875). (1858) ; People r. Cox, 9 Cal. 32 5 Riggg ,._ state, 26 Miss. 51 (1853). (1858) ; State v. Cunimings, 5 La. An. ^ Chapman v. People, 39 Mich. 357 330 (1850) ; Chapman v. People, 39 (1878). Midi. 357 (1878); Biggs v. State, 26 "State v. Steeley, 65 Mo. 218 Miss. 51 (1853) ; State v. Sfeelei/, 65 (1877) ; s.c. 27 Am. Bep. 271. Mo. 218 (1877); s.c. 27 Am. Rep. » State i-. Lakey, 65 Mo. 217 (1877). 30-t HOMICIDE. [chap. XI. was " in the peace of the state " ; ^ neither is it necessary to aver that the deceased was '' a human being," or " a reasonable creature in being." ^ Thus in Wade v. State ^ an indictment for murder alleged that the defendant killed '' Smutty, INIy Darling," and the court held this to be sufficient, the question of whether the deceased was a " reasonable creature in being " being a matter of proof and not of pleading, and it being immaterial that the name of the deceased was a peculiar one.* The name in the indictment may be that by which the de- ceased was usually known, as well as his proper name, if the two be different.^ Thus where, in a trial for the murder of William Redus, there was evidence that his true name was William " Reder," but that he was known and often called " Redus," the court held that if the jury so found the fact, it was immaterial whether " Redus " Avas the true name or not.^ But the proof must conform strictly to the averment in this respect.'' Thus it has been held that an indictment for the murder of " Patrick Fitz Patrick," is not supported by proof of the killing of "Patrick Fitzpatrick," and this, al- 1 Dumas v. State, 63 Ga. 600 (1879) ; 6 Car. & P. 408 (18.']4) ; Rex v. Norton, Commonwealth ;;. Murpliv, 65 Mass. Kuss. & M. C. C. 510 (182:>). See (11 Cush.) 472 (1853). ' Pa^'e >: State, 61 Ala. 16 (1878); 2 Reed v. State, 16 Ark. 499 (1855) ; Aaron r. State, 37 Ala. 106 (1861) ; Merrick ;;. State, 63 Ind. 327 (1878) ; f^.c. 1 Ala. Sel. Cas. 12 ; People v. State V. Stanley, 33 Iowa, 526 (1871) ; Lock wood, 6 Cal. 205 (1856) ; Mo.yna- Perrymanr. State, 36 Tex. 321 (1872) ; han v. People, 3 Colo. 367 (1877); Wade V. State, 23 Tex. App. 3U8 Mitelium ?•. State, 11 Ga. 615 (1852) ; (1887) ; s.c. 4 S. W. Rep. 896; Bean Penrod r. People, 89 111. 150 (1878) ; V. State, 17 Tex. App. 60 (1885) ; s.c. State c. Witt, 34 Kan. 488 (1885) ; s.c. 5 Am. Cr. Rep. 477; Ogden r. State, 8 Pae. Rep. 769; State v. Angel, 7 15 Tex. App. 454 (1884); Boliannon Ired. (N. C.) L. 27 (1846); Royd v. r. State, 14 Tex. App. 271 (1884). State, 14 Lea (Tenn.) 161 (1884); ■"23 Tex. App. 308 (1887); s.c. 4 Rutherford v. State, 11 Lea (Tenn.) S. W. Rep. 896. 31 (1883); Hunter r. State, 8 Tex. ■* Wade V. State, 23 Tex. App. 308 App. 75 (1880) ; Rothcliild v. State, 7 (1887) ; s.c. 4 S. W. Rep. 896. Tex. App. 519 (1880) ; State ;•. Lin- i People V. Freeland, 6 Cal. ^(j coin, 17 Wis. 579 (1863). (1856); Kriel v. Commonwealth, 5 *' Hunter v. State, 8 Tex. App. 75 Rush (Ky.) 362 (1869); s.c. Law. (1880). Insan. 379; Commonirealth v. Desnutr- ' See Moynahan r. People, 3 Colo. tenn, 82 Mass. (16 Gray) 1 (1860); .367(1877); Mitchum r. State, ] 1 Ga. O'Hrien o. People, 48 Barb. (N. Y.) 615 (1852); Penrod v. People, 89 111. 274 (1867); State v. Bell, 65 N. C. 1-50 (1878); Rutherford r. State, H 313 (1871) ; State r. Gardiner, Wright Lea (Tenn.) 31 (1883) ; State r. Liii- (Ohio) 392 (1833) ; Rex ;•. Berriman, coin, 17 Wis. 579 (1863). 5 Car. & P. 601 (1833) ; Anonymous, SEC. 269.] INDICTMENT AND INFORMATION. 305 though two allegations following such designation described the deceased as '' the said Patrick Fitzpatrick." i In Penrod v. People,^ on the trial of a party indicted for the murder of one " Robert Kain," the evidence failed to show that the person killed was of that name, the witnesses calling him " Kain," only, without giving any Christian name : this variance was held fatal. But merely proving the initials is sufficient. Thus where an indictment charged William R. Morris was mur- dered by the prisoner, and the proof was that W. R. Morris was slain by him, it was held that the proof of identity was well left to the jury, and that a verdict of guilty found by them ought not to be disturbed.^ Where all the witnesses agreed that they never knew the deceased to be called by the name alleged in the indictment, but two of them, without professing to know the real name, testified in substance that they supposed it to be as alleged, from their recollection of certain writings which they had seen some time before, on appeal it Avas held that it was error for the trial court to so instruct the jury as to leave them to think that they could convict upon such evidence, by stating that " if they found from the evidence that the deceased was known by several Christian names, and was described by one of these in the indictment, and there was proof of the name as laid, it was sufficient." * It is thought that to sustain an indictment for murder it must be shown that the Christian name of the person killed, as given in the indictment, was his true name, or one by which he was to a considerable extent called and known among those who were acquainted with him,* or prove the name so closely as to bring the difference within the principle of idem sonam.^ Thus where, in an indictment for murder, the name of the deceased was alleged to be "• Boudet," or " Bordet," wdien it was in fact '' Burte," it was held that the variance was so slight as to be immaterial.*^ And on an in- 1 Moynahan v. People, 3 Colo. 3G7 ^ gee Page v. State, 61 Ala. 16 (1877). (1878) ; Aaron v. State, 37 Ala. 106 2 89 111. 150 (1878). (1861) ; s.c. 1 Ala. Sel. Cas. 12; State SMitchum V. State, 11 Ga. 615 r. Witt, 34 Kan. 488 (1885) ; State v. (1852). Lincoln, 17 Wis. 570 (1863). . estate V. Lincoln, 17 Wis. 579 '> Aaron y. State, 37 Ala. 106(1861) ; (1863). s.c. 1 Ala. Sec. Cas. 12. 306 HOMICIDE. [chap. XI. clictment for killing " Tobin Prejer," proof of the killing of a person whose name was sounded " Tobin Prior " was held to be no variance.^ In the case of State v. Witt^ an informa- tion for murder charged the killing of " Bernhart." The per- son killed was " Banhart." The variance was held to be im- material. Where, in an indictment for murder, the surname of the person killed was spelled in three different Avays, to wit, " Giddings," " Gidings," and " Gidines," the Christian name being the same in every case, the variance was held not sufficient ground for an arrest of judgment, the second and third forms being each idem sonans with the first, within the decisions.^ It is thought the failure of the witness to give, upon a trial for murder, the full name of the person murdered, as set out in the indictment, is not material after the verdict, if the name or description, as given by the witness, corresponds, as far as it goes, Avith the same mentioned in the indictment, and it sufficiently appearing that there was no contest over the name or identity of the person.^ A variance in the middle name is immaterial.^ Where the deceased had no name, or where it was unknown to the grand jury, the indictment should describe the deceased, and allege the name or a part thereof, as the case may be, to be unknown to the grand jury ;*" and such an averment is a material one, to be proven to the satisfaction of the jury.'^ The words, "infant child, name to the grand jury unknown," are a sufficient description in an indictment of a human being upon whom the offence of murder may be committed.^ And an indictment charging that the defendant " killed Butler, whose Christian name is to the grand jury unknown," is sufficient.^ Where an indictment is for murder of "a certain Wyandotte Indian, whose uame is unknown in the grand jury," it is sufficiently descriptive of the deceased, 1 Page r. State, 01 Ala. 10 (1878). ^ Ttmpe r. State, 40 Ala. .350(1807); 2 34 Kan. 4^8 (1885). Bryant v. State, .36 Ala. 270 (1860) ; 3 State V. Lincoln, 17 Wis. 570 Edmonds v. State, .34 Ark. 720 (1879) ; (1863). Keed r. State, 16 Ark. 499 (1855). Mlutherford r. State, 11 Lea ' Reed r. State, 16 Ark. 499 (1855). (Tenn.) 31 (1883). » Tempe v. State, 40 Al.n. 3-50 (1807). 5 People V. Lockwood, Cal. 205 ^ Bryant v. State, 36 Ala. 270 (1850). (1860). SEC. 271.] INDICTMENT AND INFORMATION. 307 without any allegation that the words " Wyandotte Indian " mean a human being.^ If the name of the deceased is contained in the averment of the assault or infliction of the mortal injur}*, its omission in the averment of death is immaterial,^ but it must be stated in the conclusion,^ the rule, stated generally, being that the indictment must so indicate the deceased that the defendant could successfully plead former jeopardy to another indict- ment for the homicide of the same person.* An indictment reciting that the accused, with malice aforethought, did kill Frank Wheeler, by wounding him with a knife, " from which the said . . . did then and there die," is good, the blank name being immaterial, since it was apparent that Frank Wheeler was referred to.^ But where an indictment which charges an assault and stabbing of one H. D., whereof he died, and concluding, " and so the jurors do say that the said C. H. P., in manner and form, and by the means aforesaid, feloniously, &c., did kill and murder," is bad, as not designating the per- son murdered.*^ Sec. 270. Averring defendant's sanity. — The fact that the defendant is or may be insane or noii coynpos mentis^ is solely a matter of defence ; consequently an indictment for homicide need not allege that the defendant is of sound mind," nor that he is " a person of sound memory or discretion." ^ Sec. 271. Conclusion of indictment. — All grades of homi- cide being offences at common law as well as under the stat- utes of the various states, the words " contrary to the form of the statute in such case made and provided," or their equivalent, are not necessary,^ unless prescribed by statute : ^° particularly is this true in an indictment for murder, where the assault is alleged to have been committed in the same O 1 Reed v. State, 16 Ark. 499 (1855). « State v. Pemberton, 30 Mo. 370 2 Alford V. Commonwealth, 84 Ky. (1860). 632 (1886). - Fahnestock v. State, 23 Ind. 231 3 Dias V. State, 7 Blackf. (Ind.) 20 (1864). (1843); s.c. 39 Am. Dec. 448; State » Dumas r. State, 63 Ga. 600 (1879); V. Pemberton, 30 Mo. 376 (1860). Bean r. State, 17 Tex. App. 60 (1885). * State V. Brabson, 38 La. An. 144 » State v. Harris, 12 Nev. 414 (1886). (1877). ^ Alford V. Commonwealtb, 84 Ky. ^ ' See State r. Dunkley, 3 Ired. 623 (1886). See State v. Brabson, 38 (X. C.) L. 116 (1842). La. An. 144 (1886). 308 HOMICIDE. [chap. XL county in the state, and the deatli to have occurred in another state.^ But wliere the indictment is so concluded, the fact that the offence is defined by one statute and the punishment is prescribed by another, will not necessitate the use of the plural instead of the singular form.^ In some states it is pre- scribed that all indictments shall conclude ''against the peace and dignity of the state," or with other expressions of like nature. Such a provision is mandatory, and, therefore, an indictment is not good which fails to conform strictly thereto.^ Thus the Texas constitution requires that "all prosecutions shall be carried on and in the name of the ' state of Texas,' and conclude ' against the peace and dignity of the state.' " Accordingly, where an indictment for murder concludes "against the peace and dignity of the statute," this will vitiate the conviction, although the objection was raised in the fh'st instance in the appellate court, and by a motion for a rehearing, after judgment of affirmance.'* Sec. 272. Cliarging^ more than one homicide by the same act. — The indictment may charge the accused in one count with the murder of two or more persons by the same act ; ^ but it has been held that where the indictment is so framed, and it appears that each of the deceased persons were killed by a separate blow, although inflicted at the same time and place, the defendant may require the prosecution to elect upon which homicide they will proceed; but that judgment cannot, however, be arrested thereon.^ Sec. 273. Joinder of counts — Different modes of com- mitting- one offence." — Where there is uncertainty as to the mode in which the homicide was committed, or as to the means 1 State V. Dunklcy, 3 Ired. (N. C.) ^ Calvert v. State, 8 Tex. App. orSS L. 116(1842). (1880); Cox v. State, 8 Tex. App. 2 Thus in Bennett v. State, .3 Ind. 254 (1880). 167 (1851), an indictment for murder •» Cox c. State, 8 Tex. App. 254 concluded contra formam statutl. By (1880). tlie statute of 1840, tlie punishment '"' Cliivarrio v. State, 15 Tex. App. is either death or imprisonment in tlie 3.30 (1884); Rucker r. State, 7 Tex. state prison at hard labor during life, App. 549 (1880). at tlie discretion of the jury. Tiie *' Forrest v. State, 13 Lea (Tenn.) court held that the conclusion of the 103 (1884). indictment in the singular, to wit, " See ante, § 245. contra formam statutt, was correct. SEC. 274.] INDICTMENT AND INFORMATION. 309 used, it is good pleading to frame the indictment with as many counts as may be necessary to meet the evidence ; ^ and the prosecution should not be required to elect on which count they will proceed to trial,^ as all of such counts, taken together, describe only a single offence.^ Thus counts alleg- ing a murder by burning, by beating, and by both burning and beating, may be joined, and the state cannot be compelled to elect between them at the trial.* Sec. 274. Same — Different offences. — Murder and man- slaughter, predicated of the same homicide, may be charged in the same indictment,^ and the prosecution should not be required to elect upon which count it will proceed,^ nor should one of the counts be quashed on motion. Thus it has been held that the joinder of a count of manslaughter to a count of murder, with an averment that the prisoner had previously been convicted of manslaughter only, is proper, when it is sought to impose on the prisoner, in case he is found guilty of manslaughter only, the double punishment provided by statute in case of a second conviction of man- slaughter.'' And where two counts of an indictment charged the defendant with manslaughter in the first degree, and a third count with manslaughter in the second degree, hut only one act of killing was charged, under a statute ^ allowing one act to be charged in different counts, it was said that the prosecu- tion will not be compelled to elect on which count it will pro- iJoy r. State, 14 Ind. 139 (1800); 30 N. Y. 39 (1868); Dill v. State, 1 People r. McDowell, 63 Mich. 229 Tex. App. 278 (1877). (1886); s.c. 9 Cr. L. Mag. 72 ; 30 ^ Hunter i-. State, 40 N. J. L. (11 N. W. Rep. 68; Hunter r. State, 40 Vr.) 495 (1878). N. J. L. (11 Vr.) 495 (1878) ; Laner- * Joy v. State, 14 Ind. 139 (1860). gan V. People, 39 N. Y. 39 (1868) ; & Henry v. State, 33 Ala. 389 Cox i". People, 19 Hun (N. Y.) 430 (1859) ; People i-. Sessions, 58 Mich. (1879); Dill v. State, 1 Tex. App. 594 (1886); s.c. 26 N. W. Rep. 291; 278(1877); Smith r. Commonwealth, People v. McCarthy, 110 N. Y. 309 21 Gratt. (Ya.) 809 (1871) ; Lazier (1888); s.c. 18 N. E. Rep. 128; Kane V. Commonwealth, 10 Gratt. (Va.) i-. Commonwealth, 109 Pa. St. 541 708 (1853). (1885). See ante, § 245. 2 Joy V. State, 14 Ind. 1.39 (1860) ; « People i-. McCarthy, 110 N. Y. People V. McDowell, 63 Mich. 229 309 (1888). (1886) ; s.c. 9 Cr. L. Mag. 72 ; 30 " Kane r. Commonwealth, 109 Pa. N. W. Rep. 68; Lanergan v. People, St. 541 (1885). 8 N. Y. Crim. Proc. § 279. 310 HOMICIDE. [chap. XI. ceed.i jj-^ f\yQ casg of People v. Sessions ^ the defendant was bound over on a charge of murder, and the information afterwards filed charged in the first count, murder ; in the sec- ond count, the statutory crime of manslaughter by causing death by abortion ; and the court held that a motion to quash the second count was properly refused. Sec. 275. Same — Principals and accessories. — Where an indictment from prudence charges the defendant as princi- pal in one count and as accessory before the fact in another, a motion to require the prosecution to elect upon which count they will proceed should not be granted ; ^ and this rule ap- plies where there is a plurality of defendants, and one count charges all with being principals, and another charges part as accessories before the fact.* Thus if several persons are indicted in one count as principals in the murder, and in another count four of them are indicted as accessories before the fact, the latter may be rejected as surplusage.^ And where an indictment for murder charged in one count three defendants as principals, and in another two as principals, and the third as an accessory before the fact, it was held not to be a misjoinder of counts.^ Conviction of a degree, or for an offence, lower than that charged, in the case of other analogous crimes, will be valid. Thus an indictment for murder in the first degree will sustain a conviction of murder in any lower degree ; "* and an indict> ment for murder will sustain a conviction of voluntary man- slaughter,^ but not of involuntary manslaughter, unless that 1 People V. McCarthy, 110 N. Y. ^ McPherson v. State, 29 Ark. 225 309 (1888) ; s.c. 18 N. E. Rep. 128. (1874) ; People i'. Dolan, 9 Cal. 576 2 58 Mich. 594 (1886) ; s.c. 26 N. (1858) ; Buckner v. Commonwealth, W. Rep. 291. 14 Bush (Ky.) 601 (1879) ; Conner v. 3 State V. Hamlin, 47 Conn. 95 Commonwealth, 13 Bush (Ky.) 714 (1879) ; s.c. 36 Am. Rep. 54. Com- (1878) ; Davis v. State, 39 Md. 355 pare Simms v. State, 10 Tex. App. (1873); State v. Sloan, 47 Mo. 604 131 (1882). (1871); McGee v. State, 8 Mo. 495 * State V. Hamlin, 47 Conn. 95 (1844) ; Keefe v. People, 40 N. Y. (1879) ; s.c. 36 Am. Rep. 54. Com- .348 (1860) ; State v. Grant, 7 Oreg. pare People v. Ah Hop, 1 Idaho, 698 414 (1879) ; Livingston 7». Common- (1878). wealth's Case, 14 Gratt. (Va.) 592 5 People V. Ah Hop, 1 Idaho, 698 (1857) ; Giskie v. State, 71 Wis. 612 (1878). (1888) ; s.c. 38 N. W. Rep. 334. 6 State V. Hamlin, 47 Conn. 95 « McPherson v. State, 29 Ark. 225 (1879) ; s.c. 36 Am. Rep. 54. (1874) ; People v. Dolan, 9 Cal. 576 SEC. 275.] INDICTMENT AND INFORMATION. 311 degree of the offence is also distinctl}^ charged.^ Under such an indictment for murder the defendant may be con- victed of assault with intent to kill and murder ; ^ but not unless the indictment embraces the charge of assault.^ In the case of Brown v. State* an indictment for man- slaughter contained two counts : the first charged voluntary manslaughter in express terms; and the second, that the de- fendant, on the day named, did "unlawfully, feloniously, and wilfully touch, beat, bruise, and strike down, upon a brick pavement, in a violent manner, and with great force, H., from which striking down, and the falling upon the pavement, he, the said H., then and thereby received a mortal wound on his head," from the effect of which death instantly ensued. The court held that nothing was charged in the second count from which any intention to take the life of the deceased could be in- ferred, but the plain inference therefrom was that death was not intended, although the striking was unlawful and intentional, and that a verdict of guilty of the crime of involuntary man- slaughter should therefore not be reversed on the ground that both counts in the indictment charged voluntary manslaughter. (1858) ; Packer v. People, 8 Colo. 361 (1885); s.c. 8 Pac. Rep. 564; Rey- nolds V. State, 1 Kelly (Ga.) 222 (1846) ; Roy v. Kansas, 2 Kan. 405 (1864); Buckner v. Cominonwealtli, 14 Bush (Ky.) 601 (1879) ; Conner V. Commonwealth, Vi Bush (Ky.) 714 (1878) ; King v. State, 6 Miss. (5 How.) 7.30 (1841); State v. Sloan, 47 Mo. 604 (1871) ; Plummer v. State, 6 Mo. 231 (1840) ; Watson v. State, 6 Mo. 497 (1838) ; Burnett v. State, 14 Lea (Tenn.) 439 (1884); People V. McDonnell, 92 N. Y. 657 (1883) ; State r. Grant, 7 Oreg. 414 (1879); Peterson r. State, 12 Tex. App. 650 (1833) ; Livingston v. Common- wealth's Case, 14 Gratt. (Va.) 592 (1857) ; White v. Territory, 3 Wash. Tr. 397 (1888) ; s.c. 19 Pac. Rep. 37. After the finding of an indictment for murder, a change in the law made offences similar to that charged man- slaughter only. The act contained no saving clause. The court held that a trial for manslaughter could be had under the indictment. Packer v. People, 8 Colo. 361 (1885) ; s.c. 7 Cr. L. Mag. 239; 8 Pac. Rep. 564. Under an indictment charging mur- der by blows, a conviction of man- slaughter may be had on evidence showing that the death was caused by pleuro-pnenmonia superinduced by tlie wound and the blows. Burnett v. State, 14 Lea (Tenn.) 439 (1884). 1 Bruner v. State, 58 Ind. 159 (1877) ; Walters v. Commonwealth, 44 Pa. St. 135 (1862). See Brown r. State, 110 Ind. 486 (1886) ; s.c. 11 N. E. Rep. 447. Compare Buckner v. Commonwealth, 14 Bush (Ky.) 601 (1879); Conner v. Commonwealth, 13 Bush (Ky.) 714 (1878). 2 People V. McDonnell, 92 N. Y. 658 (1883) ; Peterson v. State, 12 Tex. App. 650 (1883). See Bush r. Com- monwealth, 78 Ky. 268 (1880). 3 Scott ('.State, 60 Miss. 268 (1882). * 110 Ind. 486 (1880) ; s.c. 11 N. E. Rep. 447. 312 HOMICIDE. [chap. XI. It has been held in Kentucky that if, on a trial for murder o-r manslaugliter, there be any evidence that the wound was not dangerous in itself, and death resulted from improper treatment or from disease contracted subsequently, not result- ing from the Avound, the jury may be so instructed, and may find the accused guilty of maliciously wounding under the statute,^ or of wounding in a sudden affray .^ And one in- dicted for murder may be convicted of murder, voluntary manslaughter, or involuntary manslaughter, but not of the offence of killing by wilfully striking, &c., as defined by the Kentucky statute.'^ He may be guilty of involuntary man- slaughter without being guilty of such statutory offence, but not conversely.^ Killing by wilfully striking, &c., is not included in the crime of murder, and is not a degree of the offence of homicide within the meaning of the Kentucky Criminal Code ; ^ hence under an indictment for murder, the accused cannot be convicted of the crime of killing by wilfully striking, &c., but he may be convicted of either of the degrees of manslaughter.^ Sec. 276. indictment of accessories and co-conspirators. — One whom the proof shows to have been a principal in the second degree, having l)een present and aiding, abetting, or assisting in the homicide, may be convicted under an indict- ment charging him as the actual perpetrator, or as principal, in the second degree.'^ Thus under the Illinois statute, the man who, '' not being present, aiding, abetting or assisting 1 Ky. Gen. Stat., c. 29, art. 0, § 2. Or. Rep. 570; 12 N. E. Kep. 805; 17 -Bush V. Coinmonwealth, 78 Ky. N. E. Kep. 898; Cominonwealtli r. 268(1880); Ky. Gen. Stat., c. 29, art. Cliapman, 05 Mass. (11 Cush.) 422 17. (1853); State v. Pay*'"". ^0 ^^o. 220 •' Ky. Gen. Stat., c. 29, art. 4, § 2. (1880) ; s.c. 2 S. W. Kep. 394; State * Buckner v. Comnionwealtli, 14 v. Cockman, 1 Winst. (N. C.) L. No. Bush (Ky.) GOl (1879). 2, 95 (1804) ; SUite v. Fley, 2 Brev. 5 Ky. Cr. Code, §§ 202, 203. (S. C.) L. 338 (1809) ; s.c. 4 Am. Dec. 6 Conner r. Comnionwealtli, 13 583; Staro v. Anthony, 1 McC. (S. C.) Bush (Ky.) 714 (1878). L. 285 (1821); State v. Jenkins, 14 " Krister r. State, 26 Ala. 107 Kich. (S. C.) L. 215 (1867) ; s.c. 94 (1855); People r. Ah Fat, 48 Cal. 01 Am. Dec. 132; Sharpe v. State, 17 (1874) ; State v. O'Xeal, 1 lloust. Cr. Te.x. App. 48G (1885) ; Davis v. State, Cas. (Del.) 58 (1858) ; Tliompson v. 3 Tex. App. 91 (1878) ; Hawley v. Commonwealth, 1 jMet. (Ky.) 13 Commonwealth, 75 Va. 847 (1880); (1858) ; Spies v. People (Anarchists' State ?•. Cameron, 2 Chand. (Wis.) Case), 122 111. 1 (1887); s.c. 3 Am. 172 (1850) ; Uniterl States v. Douglass, St. Rep. 320 ; 9 Cr. L. Mag. 829 ; Am. 2 Blatchf. C. C. 207 (1851). SEC/ 276.] INDICTMENT AND INFORMATION. 31o liatli advised, encouraged, aided, or abetted the perpetration of a crime," may be considered as the principal in tlie com- mission of the crime, may be intUcted as a principal, and may be punished as such. The indictment need not saj- anything about liis having aided and abetted either a known j^rincipal or an unknown principal. It may simply charge him with committing the crime as principal. Then, if, upon the trial, the proof shows that the person charged aided, abetted, assisted, advised, or encouraged the perpetration of the crime, the charge that he committed it as principal is established against him. It would make no difference whether the proof showed that he so aided and abetted a known or an unknown principal. 1 If the indictment charges that the defendant was present, aiding and abetting another in the commission of a homicide, tlie proof need not conform strictly to the averment as to the actual perpetrator. In an indictment against several for murder, some of the counts charged the defendants with hav- ing advised, encouraged, aided, and abetted a particular per- son named in the perpetration of the crime, and evidence was introduced to show that the particular person named did perpetrate the crime. Other counts charged the defend- ants with having advised, encouraged, aided, and abetted an unknown person in the commission of the crime, and proof was given which tended to show that the perpetrator of the crime was an unknown person. In this condition of the pleadings and the proofs it was not required of the trial court that it should so direct the jury as to restrict them to the consideration of the case on the theory that the crime was committed by the particular person named, and to omit any reference to the other theory that it was perpetrated by an unknown person.^ And where an indictment for murder against two rioters charges that the mortal injury was in- ^ Spies V. People, 122 111. 1 (1887) ; court held that it was not inconsistent, s.c. 3 Am. St. Rep. o20 ; G Am. Cr. for botli defendants were equally re- Kep. 570; 9 Cr. L. Mag. 829; 12 sponsible. State v. Payton, 90 Mo. N. E. Rep. 865 ; 17 N. E. Rep. 898. 220 (1886) ; s.c. 2 S. w". Rep. .394. An indictment, charging two de- ^ gpigg j,. pgople, 122 111. 1 (1887); fendants with murder, stated that, s.c. 3 Am. St. Rep. 320; 6 Am. Cr. with guns, &.C., they shot deceased. Rep. 570; 9 Cr. L. Mag. 829; 12 "giving him one mortal wound." The N. E. Rep. 865; 17 N. E. Rep. 898. 314 HOMICIDE. [chap. XI. flicteclby the prisoners, proof that it was inflicted by others of the rioters, whether they are known or unknown, it seems will sustain the indictment, — because all who are present and par- ticipate in the commission of the offence are equally guilty .^ If the indictment charges that A gave the mortal blow, and that B and C were present aiding and abetting, while the evidence shows that B struck the blow, and that A and C were present aiding and abetting, this is not a material vari- ance, for the blow is adjudged in law to be the stroke of every one of them. 2 Proof that the defendant was accessory only, whether before or after the fact, will not warrant a conviction under an in- dictment charging him as principal ; ^ there must be a distinct and specific averment that the defendant advised, encouraged, or assisted a person named to commit the crime of murder.'* And an indictment which charges the defendant both with " assisting and abetting " in the killing, and with being an "accessory before the fact to the killing and murdering," is fatally inconsistent.^ Sec. 277. Joint indictment. — As in the case of other crimes, all or any of the participants in the homicide may be jointly indicted in one count for its commission ; ^ and the individual acts of each defendant need not be separately stated.'^ Under such a charge one alone may be tried,^ or all may be tried and one convicted of the crime ^ or degree charged, and another of a lower degree or offence,^ or one may be convicted and the others acquitted.^^ 1 State V. Jenkins, 14 Rich. (S. C.) (1856) ; State v. Payton, 90 Mo. 220 L. 215 (1807) ; s.c. 94 Am. Dec. 132. (1886) ; s.c. 3 S. W. Rep. 394; State 2 Bristcr r. State, 26 Ala. 107 i'. Arden, 1 Bay (S. C.) L. 487 (1795) ; (1855) ; State v. Cockman, 1 Winst. State v. Bradley, 9 Rich. (S. C.) L. (X. C.) L. No. 2, 95 (18(J4). 168 (1855); Hampton v. State, 45 3 Walrath v. State, 8 Neb. 80 Tex. 154 (1876). (1878). 7 State v. Payton, 90 Mo. 220 * An indictment charged S. H. with (1886) ; s.c. 2 S. W. Rep. 394. inciting, &c., S. H. to a murder in- ^ State v. Bradley, 9 Rich. (S. C.) stead of W. R. S. Held, a fatal mis- L. 168 (1855). take. State v. Houston, 19 Mo. 211 » Mask v. State, 32 Miss. 405 (18''^3). (18.50) ; State v. Arden, 1 Bay (S. C.) ^ State V. Sales, 30 La. An. pt. IT. L. 487 (1795). 916 (1878). 10 Hampton v. State, 45 Tex. 154 « State ?). Zcihart, 40 Towa, 169 (1876). (1847) ; Mask v. State, 32 Miss. 405 SEC. 278.] INDICTMENT AND INFORMATION. 315 Sec. 278. Signature and indorsement of indictment. — At common law it is not necessary for the prosecuting officer to sign or indorse the indictment ; ^ but in some of the states it is made essential by statute.^ It is essential to the valid- ity of every indictment that it contain an indorsement that it is " a true bill," signed by the foreman of the grand jur}^ ; ^ but the omission of such an indorsement should be taken advantage of by motion to set aside the indictment, or by demurrer.* It is sometimes provided by statute that the names of all material witnesses for the state, who testified before the grand jury, shall be indorsed on the indictment ; but an objection to the omission of this indorsement must be made on motion to quash, or it will be deemed to be waived.^ 1 State r. Reed, 67 Me. 127 (1877); (1869) ; State v. Harwood, 1 Winst. Keithler v. State, 18 Miss. (10 Sined. (N. C.) L., No. 1, 228 (1864). & M.) 192, 235 (1848). * State v. Shippey, 10 Minn. 223 ^ See Heacock r. State, 42 Ind. (1865). See State v. Harwood, 1 393 (1873). Winst. (N. C.) L., No. 1, 228 (1864). 3 State V. Shipper, 10 Minn. 223 & State i;. Griffin, 87 Mo. 608 (1885). (1865) ; State v. Horton, 63 N. C. 595 CHAPTER XII. BAIL IN HOMICIDE CASES. Sec. 279. Common law doctrine. Sec. 280. American doctrine. Sec. 281. Same — Texas doctrine. Sec. 282. When bail refused. Sec. 283. Murder in first degree — Bailable when. Sec. 284. Jurisdiction to admit to bail. Sec. 285. Granting bail after indictment. Sec. 286. Cause for admission to bail — Sickness and disease. Sec. 287. What inquired into. Sec. 288. Proof of guilt — When justifies refusal of bail. Sec. 289. Same — Burden on defendant to show guilt not evident. Sec. 290. Failure of jury to agree. Sec. 291. Bail after conviction. Sec. 292. Granting and refusing bail — Procedure. Sec. 293. Same — Review. Sec. 279. Common law doctrine. — At common law all public offences are bailable, not excepting even crimes pun- ishable with death ; though the right to refuse bail to a per- son charged with such a crime is within the discretion of the court.i This discretion to bail extended to every stage of 1 Barney's Case, 5 Mod. 323(1097); Burr's Trial, 300; Rex v. Pep- 4 Bl. Com. 298, 299; 2 Hale, P. C. per, Comb. 298 (1095); Rex v. 120. See Ex parte Bryant, 34 Ala. Delaniere, Comb. (1085); Reg. v. 270 (1859) ; State v. McNab, 20 N. H. Barthelemy, Dears. C. C. GO (1852) ; 160 (1849); State v. Rockafellow, 6 Reg. v. Barronet, Dears. C. C. 51 N.J. L. (1 Halst.) 332 (1796) ; People (1852) ; s.c. 1 El. & B. 1 ; Harvey's V. Van Home, 8 Barb. (N. Y.) 158 Case, 10 Mod. 334 (1716); Rex i-. (1850) ; People r. Dixon, 4 Park. Cr. Higgins, 4 0. S. U. C. 83 (1835) ; Rex Cas. (N. Y.) 651 (1856); People v. r. Yates, 1 Show. 190 (1692) ; Danby's Hyler, 2 Cr. Cas. (N. Y.) 570 (1855) ; Case, Skin. 56 (1683) ; Rex v. Wynd- State r. Hill, 3 Brev. (S. C.) L. 89 ham, 1 Strange, 2 ; s.c. 16 Eng.L. & Eq. (1812); s.c. 1 Tread. (S. C.) Const. 361 (18.52); Ferrington's Case, T.Jones 242; United States v. Hamilton, 3 222 (1683) ; Stafford's Case, T. Raym. U. S. (3 Dall.) 17 (1795), bk. 1 L. 381 (1681) ; Watson's Case, 1 Salk. od. 490; United States r. Stewart, 2 106 (1701); Anonymous, LofEt. 281 U.S. (2 Dall.) 343 ri795), bk. 1 L. (1773). ed. 502 ; United States v. Burr, 1 316- SEC. 280.] BAIL IN HOMICIDE CASES. 317 the proceedings until the prisoner was finally committed in execution.^ This discretion was originally vested in the court of King's Bench, but is now supposed to be extended to the Queen's Bench Division of the Iligli Court of Justice and to be vested in the courts thereof in vacation."^ Sec. 280. American doctrine. — The general rule that the defendant shall be admitted to bail, as a matter of right in all cases, including all degrees of homicide, except when the charge is for a capital offence, the proof of wliich is evi- dent, or the i^resumption great.'^ In many of the states of the Union this right is often guaranteed by constitutional pro- 1 20 Cent. L. J. 264. , 2 See Rex v. Danby, 2 Show. 335 (1085) ; 4 Bl. Comm. 299. In Canada a prisoner charged witli murder may in some cases be admitted to bail ; and on such an application the court may look into the informa- tion, and if they find good ground for a charge of felony, may remedy a defect in a commitment by charging a felony in it. Ilex v. Higgins. 4 Up. Can. K. B. 83 (1835). 3 See Ex parte Acree, 63 Ala. 234 (1879) ; Ex parte White, 9 Ark. 222 (1848) ; Ex parte Wolff, 57 Cal. 94 (1880) ; People v. Tinder, 19 Cal. 539 (1802) ; State v. Wicks, R. M. Charlt. (Ga.) 139 (1822) ; Lynch v. People, 38 111. 494 (1865) ; Ex parte Kendall, 100 Ind. 599 (1884) ; Ex parte Hock, 68 Ind. 200 (1879) ; Ex parte Suther- lin, 56 Ind. 595 (1877) ; Ex parte Moore, 30 Ind. 197 (1808) ; Ex parte Heffren, 27 Ind. 87 (1860); Baldwin V. Westenhaver, 75 Iowa, 547 (1888) ; s.c. 39 N. W. Rep. 882 ; Hiijht v. United States, Morr. (Iowa) 407 (1845) ; s.c. 43 Am. Dec. Ill; Lumm v. State, 3 Ind. 293 (1852) ; In re Malison, 36 Kan. 725 (1887) ; Ullery v. Common- weath, 8 B. Mon. (Ky.) 3 (1848); Ready v. Commonwealth, 9 Dana (Ky.) 38 (1839) ; State v. Brewster, .35 La. An. 605 (1883); State v. Brusle, 34 La. An. 61 (1882) ; Territory v. Benoit, 1 Mart. (La.) 142 (1810) ; State r. Hart well, .35 Me. 129 (1853) ; Yaner v. People, 34 Mich. 290 (1876); Ex parte Floyd, 60 Miss. 913 (1883); Exjiarte Bridewell, 57 Miss. 39 (1879); Ex parte Fortenberry, 53 Miss. 428 (1876) ; Beall v. State, 39 Miss. 715 (1801) ; Moore v. State, 36 Miss. 137 (1858) ; Shore v. State, 6 Mo. 640 (1840) ; State v. Rockafellow, 6 N. J. L. (1 Ilalst.) 332 (1796); Territory V. MuUin, 3 N. Y. Leg. Obs. 210 (1844) ; People v. Perry, 8 Abb. (N. Y.) Pr. N. S. 27 (1870) ; People V. Shattuck, 6 Abb. (N. Y.) N. C. 33 (1878); People v. Lohman, 2 Barb. (N. Y.) 450 (1848) ; Ex parte Tayloe, 5 Cow. (N. Y.) 39 (1825) ; People v. Cole, 6 Park. Cr. Cas. (N. Y.) 695 (1868) ; People v. McLeod, 25 Wend. (N. Y.) 483 (1841) ; s.c. .37 Am. Dec. 328 ; Goodwin's Case, 5 City Hall Rec. (N. Y.) 11 (1820); State ?-. Dew, 1 Tayl. (N. C.) 142 (1798); State v. Summons, 19 Ohio, 139 (1850); Com- monwealth V. Keeper of Prison, 2 Ashm. (Pa.) 227 (1838); Common- wealth V. Lemley, 2 Pittsb. (Pa.) 362 (1862) ; State v. Hill, 3 Brev. (S. C.) L. 89 (1812) ; Moore v. State, 31 Tex. 572 (1809); Ex parte Cooper, 31 Tex. 185 (1868) ; In re Smith, 26 Tex. App. 1.34 (1888); s.c. 9 S. W. Rep. 359; Thompson v. State, 25 Tex. (Supp.) 395 (1860); Ex parte O'Connor, 22 Tex. App. 660 (1887) ; s.c. 3 S. AV. Rep. 340; Ex parte Allen, 22 Tex. App. 201 (1886) ; s.c. 2 S. AV. Rep. 588; Ex parte Bryant, 21 Tex. App. 6.39 (1886) ; s.c. 2 S. W. Rep. 891 ; Ex parte Coldiron, 15 Tex. App. 465 318 HOMICIDE. [chap. XII. visions, varying in phraseology, but all of the same general import.^ A person charged with murder in the first degree' is entitled to be let to bail where the proof is not evident and the presumption is not great.^ Upon an application by a person charged with murder, to be admitted to bail, it appeared that the prisoner and the deceased, being friends between whom there liad been no previous difficulty, met in a saloon where they became intoxi- cated and fell into a dispute. The prisoner became excited and angry, and attempted to go out; when the deceased, much the stronger man, perpetrated repeated personal vio- lence and indignity upon the prisoner, sufficient to provoke him to extreme anger. The jarisoner, greatly excited, es- caped at length from the deceased, hastened to his own house, a short distance, and without being absent more than five min- utes, returned with a revolver, with Avhich he immediately shot and killed the deceased. The court held that it was not clear that there was sufficient time between the provocation and the act for passion to cool and reason to resume control, or that the killing was malicious, and that bail should be taken.-^ In re Smith * the deceased was shot from ambush, and killed, at midnight, while being conveyed to jail. According to his dying declarations, he recognized the relators by the flash of their guns, and previous ill feeling between them and the de- (1884); Ex parte Beacom, 12 Tex. 1859, Bill of Rights, § 9; Const. Ky. App. 318 (1883); Ex parte Riiiulon, 1850, art. XIII. § 18; Const. La. l:i Tex. App. 145 (1883); /«?■« Foster, 1808, tit. I. art. 7; Const. Me. 1820, 6 Tex. App. 625 (1879); Webb v. art. I. § 10; Const. Mich. 1850, art. State, 4 Tex. App. 167 (1879); Green VI. § 29; Const. Miss. 1868, art. I, V. Commonwealth, 11 Lei,i,^h (Va.) 667 § 8; Const. Mo. 1875, art. II. § 24; (1841); /nrePerry, 19 Wis. 676(1865); Const. Neb. 1875, art. I. § 9 ; Const. United States v. Stewart, 2 U. S. (2 Nev. 1864, art. I. § 7 ; Const. N. J. Dall.) 343 (1795) ; bk. 1 L. ed. 502. 1844, art. I. § 10; Const. Ohio, 1851, 1 See UUery v. €ommonwealth, 8 art. I. §9; Const. Oreg. art. I. § 14, B. Mon. (Ky.) 3 (1848); Ready r. Const. Pa. 1873, art. I. § 14 ; Const. Commonwealth, 9 Dana (Ky.) 38 R. I. 1842, art. I. § 9; Const. S. 0. (1839) ; Const. Ala. 1875, art. I. § 17 ; 1868, art. I. § 16 ; Const. Tenn. 1870 ; Const. Cal. 1879, art. I. § 6; Const, art. I. § 15; Const. Vt. 179.3, c. II. § 3.3. Colo. 1876, art. I. § 19; Const. C(mn. 2 /,; ,.g Malison, 36 Kan. 725 (1887); 1818, art. I. § 13; Const. Del. 1831, s.c. 14 Pac. Rep. 144. art. I. § 12; Const. Fla. 1868, art. I. 3 Ex parte Moore, 30 Ind. 197 § 8; Const. 111. 1870, art. II. § 7 ; (1868). Foley f.People.Brecse (111.) 31 (1822); ^26 Tex. App. 134 (1888); s.c. 9 Const. Ind. art. I. § 17 ; Const. Kan. S. W. Rep. 359. SEC. 282.] BAIL IN HOMICIDE CASES. 319 ceased, and threats b}^ one of them were shown. A hat, wliich a witness testified he gave to one of the rehitors a few days before, was found near the scene of the killing. The officer in charge of the deceased saw no one near the place from which the shots were fired, and the next morning he found the tracks of but one person in the neighborhood. On appeal it was held that the court erred in refusing bail to relators. Sec. 281. Same — Texas doctrine. — Under the provisions of the constitution of Texas that all prisoners shall be bail- able " unless for capital offences when the proof is evident," ^ in the following cases, defendants indicted for murder have been admitted to bail : Where the deceased was killed in a fight between himself and two others on one side and the defendant and his father on the other, and the fight was brought on by the deceased and his party ,^ where the deceased had provoked the quarrel with the defendant, and dared him to cross a mark which he made on the ground, and, on his advancing, struck at him with a dangerous weapon, whereupon the defend- ant cut the deceased with his knife, inflicting Avounds from which he died ; ^ where, upon an indictment for murder of an infant, by wilfully permitting it to starve, there was evidence tending to show that the child might have died from being fed on impure milk ; * and where the evidence showed a murder, but not that the deceased was the man for whose murder the defendant was indicted, nor that the defendant was con- nected with the homicide.^ Sec. 282. When bail refused. — It has been laid down that where the crime is of the highest magnitude and the evidence in support of the charge strong, and the punishment the highest known to the law, the court will not generally interfere to admit to bail.'^ Bail is said by Hawkins ' to* be proper only when it stands indifferent whether the party is guilty or innocent of the accusation against him, as* it often 1 Bill of Rights, § 11. 6 Ex parte Randon, 12 Tex. App. 2 Ex parte Bryant, 21 Tex. App. 146 (1883). ' 639 (1886) ; s.c. 2 S. W. Rep. 891. e Ex parte Barronet, 1 El. & Bl. 1 3 Ex parte Allen, 22 Tex. App. 201 (1852) ; s.c. 72 Eng. C. L. 1. (1886) ; s.c. 2 S. W. Rep. 588. " 1 Hawk. bk. 2, c. 15, § 20. * Ex parte O'Connor, 22 Tex. App. 660 (1887) ; s.c. 3 S. W. Rep. 340. 320 HOMICIDE. [chap. XII. does before the trial ; but where the indifference is removed it would be abusive to bail.^ Sec. 283. Murder in first degree — Bailable when. — While it is true that all courts, proceeding according to the course of the common law, have a discretionary power to grant bail in all cases, including murder in the first degree, yet, in the absence of extraordinary circumstances, or special reasons, it will not be granted.^ This power will not be exer- cised in either of the following cases : (1) Where it appears to the judge from evidence before indictment that there is probable cause for allowing the prisoner to answer to the crime of murder;^ (2) Where he has confessed the crime;* (3) Where the proof is evident, or the presumption great, that he committed the crime ; ^ and (4) where an indictment been has found by the grand jury for the crime charged.*^ In those states where murder is by statute divided into two or more degrees, the first degree alone being capital, every person charged with murder is entitled to bail unless the proof is evident or the presumption great, that the crime is murder in the first degree." Where the crime is not 1 This rule is approved in Ex parte Eex v. Higgins, 4 U. C. (0. S.) 83 Tayloe, 5 Cow. (N. Y.) 39 (181^5); (1835). People V. Goodwin, 1 Wheel. Cr. Gas. ^ Territory v. Benoit, 1 Mart. (La.) (N. Y.) 253 (1820). 142 (1810) ; People v. McLeod, 1 2 See Whitham v. Button, Gomo. Hill (N. Y.) .377 (1841^ ; State v. Ill (1689); Herbert's Case, Latch. Mills, 2 Dev. (X. G.) L. 420, 421, 422 12 (1625) ; Barney's Case, 5 Mod. 323 (1830) ; Reg. v. Chapman, 8 Gar. & (1698). P. 558 (1838) ; Reg. v. Andrews, 2 3 Reg. f. Barthelemy, Dears. 60 Dowl. & L. 10 (1814) ; Mohun's Case, (1852) ; In re Barronet, 1 El. & Bl. 1 1 Salk. 104 (1698> ; 1 Burr's Trial, (1852) ; s.c. 72 Eng. G. L. 1 ; Dears. 306, 312. G. C. 51 ; anonymous, 1 Salk. 104 " Ex parte Vaughan, 44 Ala. 417 (1700); Rex v. Garter, W. Kel. 159 (1870); A-.r /)«?/« Bryant, 34 Ala. 270, (1784). 277 (1859); Ex parte Banks, 28 Ala. ■* State V. Abbot, R. M. Gliarlt. 89, 99 (1856) ; Ex parte McCrary, 22 (Ga.) 244p822) ; In re Barronet, 1 Ala. 65 (1853) ; Ex parte Groom, 19 El. & Bl. 1 (1852) ; s.c. 72 Eng. G. L. Ala. 561 (1851 1 ; Ex parte Wolff, 57 1. Compare Rex v. Higgins, 4 U. C. Gal. 94 (1880); Finch v. State, 15 (O. S.) 83 (1835). Fla. 634 (1876) ; State v. Klingman, 5 Territory ?-. Benoit, I Mart. (La.) 14 Iowa, 404, 408 (1802) ; Shore v. 142 (1810); People v. Perry, 8 Abb. State, 6 Mo. 640 (1840). See Drury (X. Y.) Pr. N. S. 27, .30 (1870). But v. State, 25 Tex. 45 (1860) ; McCoy where the evidence fails to disclose r. State, 25 Tex. 33 (1860) ; Thomp- such probable guilt bail will be granted, son v. State, 25 Tex. (Supp.) 395 (1860). SEC. 284.] BAIL IN HO]\nCIDE CASES. 321 divided into degrees, or where murder in the second degree is made non-bailable by statute or otherwise, the inquiry should be as to whether the facts amount to murder, that is, whether the killing was done with malice express or implied.^ Sec. 284. Jurisdiction to admit to bail. — It is thought that jurisdiction to hear and determine accusations of crime necessarily includes power to discharge persons found impris- oned on such accusations. Consequently any court having jurisdiction to try the charge against the prisoner has juris- diction to discharge him from imprisonment or to admit him to bail ; ^ and those superior courts which have a superintend- ing jurisdiction over inferior tribunals may inquire into the legality of commitments made by such tribunals, examine into the grounds upon which persons have been committed upon charges of crime, and recommend discharge or admit them to bail as the circumstances of each particular case may require. Judge Thompson says^ that the doctrine of unlimited power to bail may be traced through all the author- ities which consider the extent of this power as possessed by the court of King's Bench,* and by those American courts which possess the same jurisdiction in this regard as the court of King's Bench.^ 1 Ex parte Wray, 30 Miss. 673 (1695^ ; Witliam v. Button. Comb. (1856); Ex parte Moore, 30 Ind. 197 111 (1689); Note to Page i: Price (1868). 3 Salk. 67 (1691); Roe's Case, 5, 2 People V. Van Home, 8 Barb. Mod. 78 (1696) ; Rex ?•. Kendal, (N. Y.) 158 (1850) ; People v. .Jefferds, 1 Salk. .347 ; Watson's Case, 1 Salk. 5 Park. Cr. Cas. (N. Y.) 518 (1861); 106 (1701); Mohun's Case, 1 Salk. People r. Goodwin, 1 Wheel. Cr. Cas. 103 (1698) ; Danby's Case, Skin. 56 (N. Y.) 434, 436 (1820) ; State v. Hill, (1683) ; Rex r. Wyndham, 1 Str. 2 3 Brev. (S. C.) 89 (1812); Rex v. (1715); Farrington's Case, T. Jones, Delamere, Comb. 6 (1685). 222 (1683) ; Stafford's Case, T. Raym. 3 6 Cr. L. Mag. 3. .381 (1680) ; Rex v. Higgins, 4 U. C. 4 See Street r. State, 43 Miss. 1 (O. S.) 83 (1835) ; 4 Bl. Comm. 299; (1871); Rex v. Morgan, 1 Bulst, 84 Coke's Entries, 354, 350. (1611) : Rex v. Lord Baltimore, 4 5 gee State r. Abbot, R. M. Cliarlt. Burr.2179.(1768);Reg. c. Bartbelemy, (Ga.) 244 (1822); Lynch v. People, Dears. C. C. 60 (1852) ; Rex v. Marks, 38 111. 494 (1865) ; State v. McNab, 3 East, 157 (1802) ; Re Barronet, 1 EI. 20 N. H. 100 (1849) ; State v. Rocka- 6 Bl. 1 (1852) ; s.r. Dears. C. C. 51; fellow, 6 N. J. L. (1 Halst.) 332, .348 22 L. J. M. C. 25 ; Herbert's Case, Lat. (1796) ; People r. Van Home, 8 Barb. 12 (1625) ; Harvey Case, 10 Mod. .334 (N. Y.) 158, 165 (1850) ; People r. (1716) ; Rex v. Pepper, Comb. 298 Cole, 6 Park. Cr. Cas. (X. Y.) 695, 702 21 322 HOMICIDE, [chap. XII. Sec. 285. Granting bail after indictment. — In the Eng- lish courts the practice is to refuse to hear proof to rebut the presumption of guilt created by an indictment. That prac- tice is followed by many of the courts in this country. Thus upon the application of Aaron Burr, who was indicted for treason, Chief Justice Marshall refused bail and thought that proof to rebut the presumption raised against tlie defend- ant by the finding of the grand jury was inadmissible although before indictment he had admitted the prisoner to bail.^ In some of the states a different rule prevails. Thus in Indiana since the decision in the case of Lumm v. State,^ the practice has been to hear the evidence after indictment and to let to bail upon proof that the prisoner was guilty of a bailable offence, or upon his showing that the " proof was not evident or the presumption strong," that he was guilty of a non-bail- able offence.'^ Sec. 286. Cause for admission to bail — Sickness and disease. — It Is considered good reason for admission to bail that the defendant has a present, painful, severe, and danger- ous disease, which is likely to endanger his life if he is kept in confinement;* and in some states it has become a rule that a prisoner under indictment for a capital offence will be admitted to bail, unless he is brought to trial within a cer- tain specified time.^ But it is thought that this is no ground for admission to bail, unless the continuance will operate oppressively upon the prisoner.^ (1868) ; People v. Cunningham, 3 ^ gee Ex parte "Wray, .% Miss. 673 Park. Cr. Cas. (N. Y.) 520 (1857) ; (1856) ; State v. Summons, lU Ohio, People V. Hyler, 2 Park. Cr. Cas, 139 (1850). (N. Y.) 570 (1855) ; Matter of Good- * People v. Cole, 6 Park. Cr. Cas. hue, 1 Wheel. Cr. Cas. (N. Y.) 427 (N. Y.) 695 (1868) ; Archer's Case, 6 (1815); States. Hill, 3 Brev. (S. C.) Gratt. (Va.) 705 (1849); Common- 89(1812); s.c. 1 Tread. (S. C) 242 ; wealth v. Semmes, 11 Leigh (Va.) Ex parte Gilehrist, 4 McC. (S. C.) 233 665 (1841) ; United States v. Jones, (1827); Case of Jefferson Davis, 3 Wash. C. C. 224 (1813). See Les- Chase's (U. S.) Dec. 1, 49 (1871). ter v. State, 33 Ga. 192 (1862) ; 1 See Hight v. United States, 1 Thomas y. State, 40 Tex. 6 (1874). Morris (Iowa) 407 (1845) ; Territory ^ See Ex parte Carroll, .36 Ala. 300 V. Benoit, 1 Mart. (La.) 142 (1810) ; (i860); Ex parte Croom, 19 Ala. 561 State V. Mills, 2 Dev. (N. C.) L. 421 (1851); Ex parte Stiff, 18 Ala. 464 (18.30); United States v. Jones, 3 (1850); Ex parte Simonton, 9 Port. Wash. C. C. 224 (1813). (Ala.) .390 (18.39). 23 Ind. 293 (1852). ^^ State v. Abbot, R. M. Charlt. SIX". 286.] BAIL IX HOMICIDE CASES. 328 Slight, or even considerable sickness will not furnish a sufficient ground to justify letting a person to l)ail who is confined on the charge of homicide ; because there are few persons whose health will not be injuriously affected by con- finement. There must be strong grounds for apprehending permanent impairment of health or a fatal result.^ In the case of United States v. Kie ^ the defendant was confined on a charge of murder and asked for bail on the ground, among others, of sickness, and presented a certificate of a surgeon of the United States Navy to the effect that he was suffering from a serious disease accompanied by derangement of the heart's action,^ and much constitutional debility. The court refused the application giving the following as the reason for so doing ; the court say : " There is undoubtedly evidence before the court to the effect that the prisoner is suffering from a painful disease, and that his confinement may have increased it ; it is also probable, and, no doubt, this disease, and the confinement he has undergone, may have weakened him somewhat ; but there is no evidence that the prisoner is in such a condition, either of body or mind, that the court should look upon this as an exceptional case. As I before remarked, the question presented is a serious one, and not free from difiiculty ; and if the evidence before me had sus- tained the allegations in the petition, and it had been shown to my satisfaction that the prisoner was in such a physical condition that further confinement might seriously affect him in body and mind, and possibly bring about his death, I would unhesitatingly grant the prayer of the petition, and admit the prisoner to bail ; but, from the evidence before me in support of this allegation, and from ray own knowledge of the physi- (Ga.) 244 (1822). See Reg. v. An- The Texas statute admits a prisoner (Irews, 2 Dowl. & L. 10 (1844) ; s.c. to bail, in cases otlierwise not baila- 1 New Sess. Cas. 199. ble, " when it appears that any spe- 1 Ex parte Pattison, 56 Miss. IHl cies of confinement will cndarirer his (1878) ; Harvey & Comb's Case, 10 life." Pasch. Dig. Tex. St. 2009. See Mod. 334 (1710) ; Kirk's Case, 5 Mod. Thomas v. State, 40 Tex. 6 (1874). 454(1700) ; Cow/iare Lester y. State, 38 24 ^Yest Coast Rep. 553 (1885); Ga. 192 (1862); People v. Cole, 6 Park. s.c. 20 Cent. L. J. 103. Cr. Cas. (N. Y.) 695, 701 (1868) ; 3 " Heart disease," it seems, is not Archer's Case, 6 Gratt. (Va.) 705 a ground for letting to bail. See Lester (1849); Rex v. Wvndham, 1 Stra. 2 v. State, 33 Ga. 192 (1862). 4 (1715). 324 HOMICIDE. [chap. XII. cal and mental condition of the prisoner, I am of the opinion that, under the circumstances, this said prisoner, Charles Kie, has neither been confined an unreasonable time awaiting trial, nor is he at the j)resent time in such a condition, either i:)hvsically or mentally, as to cause the court to exercise its power under the statute, and admit him to bail." Sec. 287. What inquired into. — On letting to bail the court ought not to look farther than to the nature of the offence and the strength of the evidence in support of it. Neither the charaQter of the prisoner nor his relations or situ- ation in life can be taken into consideration in determining the probability of his appearing for trial.^ It is said in the case of Keg. v. Mullady,^ however, " that on an application by prisoners in custody on a charge of mur- der, under a coroner's warrant, to be admitted to bail, it is proper to consider the probability of their forfeiting their bail if they know themselves to be guilty. Where in such case there is such a presumption of tlie guilt of the prisoners as to warrant a grand jury in finding a true bill, they should not be bailed. The fact of one assize having passed over since the committal of the prisoners, without an indictment having been preferred, is in itself no ground for bail. The application is one of discretion and not of right, the prisoners not having brought themselves within the statute ^ by apply- ing on the first day of the assize to be brought to trial. Sec. 288. Proof of j?uilt — When justifies refusal of bail. — One indicted is presumed to be guilty as charged in the indictment,'* consequently an indictment is generally regarded as creating a presumption against the right to bail.^ The question as to the sulfieiency of the proof of the defend- ant's guilt to warrant a refusal of bail is one to be decided by the court to which the application is made, according to the cir- cumstances of each particular case. It has been sometimes 1 In re RoLinson, 23 L. J. Q. R. 28G (1870); Holley i-. State, 15 Fla. 688 (1854). (1870) ; Finch v. State, 15 Fla. 634 M Up. Cin. V U. 31 1. (1876); Ex parte Jones, 55 Ind. 176 3 31 Car. II. c. 2, § 7. (1876); Ex parte Colter, 35 Ind. 109 * See Ex pane Vauglian, 44 Ala. (1871) ; Ex parte Heffren, 27 Ind. 87 417 (1870). (1866) ; People v. Goodwin, 1 Wheel. ^ Ex parte Vauglian, 44 Ala. 417 Cr. Cas. (N. Y.) 434,436 (1820). SEC. 289.] BAIL IN HOMICIDE CASES. 325 held that an indictment for a capital offence is, of itself, suffi- cient proof of defendant's guilt to preclude any inquiry into the merits on an application for bail,i except under special and extraordinary circumstances ; ^ but the weight of author- ity is clearly to the effect that an indictment does not raise such a presumption of guilt as will absolutely preclude the court from going behind the indictment and investigating the merits of the charge with a view to ascertaining whether the accused is entitled to bail ; ^ and the prisoner may have a writ of habeas corpus as a matter of right.* But the supreme court of Arkansas say in AVhite's Case ^ that to entitle a per- son under indictment for a capital offence to a writ of habeas corjms on an application for bail, he must state facts in his petition under oath which will rebut the presumption raised against him by the indictment. Sec. 289. Same — Burden on defendant to show guilt not evident. — The defendant has the burden to show that the proof of his guilt is not evident, nor the presumption great, — as an indictment for a capital homicide implies prima facie that no right to bail exists,*^ — and, in order to show this, he must produce the evidence on which the prosecution will rely for conviction.' But he need not affirmatively prove his innocence by other evidence ; and he is entitled to bail, unless the evidence, taken as a whole, satisfies the court that his 1 People V. Tinder, 19 Cal. 539 494 (1865) ; Lumm v. State, 3 Ind, (1802); Hight I'. United States, Morris 293 (1852); Commonwealth v. Lem- (lowa), 407 (1845) ; s.c. 43 Am. ley, 2 Pitts. (Pa.) 362 (1862). See Dec. Ill; State v. Brewster 35 La. ^r pnr/e Wolf , 57 Cal. 94 (1880); Ex An. 605 (1883); State v. Brusle, 34 par^e Hock, 68 Ind. 206 (1879) ; People La. An. 61 (1882); People v. Sliat- v. Van Home, 8 Barb. (N. Y.) 158 tuck, 6 Abb. (N. Y.) N. C. 33 (1878); (1850) ; Yarbrough v. State, 2 Tex. People V. McLeod, 1 Hill (N. Y.), 377 523 (1847). (1841); s.c. 25 Wend. (X. Y.) 483; * See Ex parte Wolf, 57 Cal. 94 37 Am. Dec. .328. (1880) ; State v. Wicks, R. M. Charlt. 2 People V. Tinder, 19 Cal. 579 (Ga.) 1.39 (1822) ; Ex parte Hock, 08 (1862) ; Hight i-. United States, Mor- Ind. 206 (1879) ; Lumm v. State, 3 ris (Iowa), 407 (1845); s.c. 43 Am. Ind. 293 (1852) ; Commonwealth r. Dec. Ill; State v. Brewster, -35 La. Lemley, 2 Pitts. (Pa.) 362 (1862). An. 605 (1883); People v. McLeod, '-> Ex parte White, 9 Ark. 229 1 Hill (N. Y.) 377 (1841); s.c. 25 (1848). Wend. (N. Y.) 483; 37 Am. Dec. .328. ^ Ej. parte Kendall, 100 Ind. 599 3 J?.r;wrte White.9 Ark.222 (1848); (1884). State V. Wicks, R. M. Charlt. (Ga.) ^ Ex parte Heffren, 27 Ind. 87 139 (1822); Lynch v. People, 38 111. (1866). 326 HOMICIDE. [CHAPi XII. guilt is apparent.! He may base liis application upon affi- davits arising from the testimony on which the charge is founded,^ or affidavits tending to show that the prosecution has been instituted from malice or mistake ; ^ but it has been held that affida\ats taken ex parte cannot be made sufficient ground for proof upon which to admit to bail.* The prisoner may overcome the presumption which the indictment raises against his right to bail by showing either (1) that he is not guilty of any degree of felonious homicide which is included in the indictment, or (2) that he is not guilty of murder in the first degree, Avhich alone is capital by the statute under which he is indicted.^ In m.any of the states the accused is permitted to do this by introducing evi- dence de novo, overcoming the presumption arising from the indictment, and showing that the proof of his guilt is not evident and that the presumption is not great.^ In deter- mining the right to admit to bail the indictment prima facie furnishes a justification for the imprisonment, and the burden is therefore upon the prisoner to show that he has a constitu- tional right to be admitted to bail ; in other words, that his guilt is not evident or the presumption great ;'^ and if he fails to introduce evidence to overcome this presumption bail should be refused.^ 1 Ex parte Eandon, 12 Tex. App. 378 (1881) ; Ex parte Hock, 68 Ind. 145 (1883). 206 (1879) ; Ex parte Sutliorlin, 56 2 Goodwin's Case, 5 City Hall Rec. Iiid. 595 (1877); Ex parte Moore, 30 (N. Y.) 11 (1820). Ind. 197 (1868) ; Ex parte Heffren, 27 3 State V. Hill, 3 Brev. (S. C.) L. Ind. 87 (1866) ; Lumm v. State, 3 Ind. 89 (1812). 293 (1852) ; Ex parte Bridewell, 57 4 State V. Dew, 1 Tayl. (N. C.) 142 Miss. 39 (1879) ; Street v. State, 43 (1798). Miss. 1, 26 (1871); Ex parte Wray, '"Ex parte Vaughan, 44 Ala. 417 30 Miss. 681 (1856); Ex parte Kan- (1870) ; Finch v. State, 15 Ala. 633 don, 12 Tex. App. 145 (1883) ; Ex (1846). po;-^f Bonar,9Tex.App.610(1881);£'a: 6 Ex parte Vaughan, 44 Ala. 417 parte Scoggin, 6 Tex. App. 546 (1879). (1870) ; Ex parte Bryant, 34 Ala. 270, Compare Ex parte Mosby, 31 Tex. 566 275 (1859) ; Ex parte Mahone, 30 Ala. (1869). Contra Hight v. United States, 49 (1857); Ex parte Banks, 28 Ala. Morris (Iowa), 407 (1845). 89 (1856) ; Ex parte Kittrel, 20 Ark. ^ Ex parte Vaughan, 44 Ala. 417 435 (1859) ; Ex parte Good, 19 Ark. (1870) ; Ex parte Heffren, 27 Ind. 87 413 (1858); Ex parte White, 9 Ark. (1866). 222 (1848) ; Holloy i-. State, 15 Da. * Ex parte Scoggin, 6 Tex. App. 688 (1876) ; Finch v. State, 15 Fla. 546 (1879). 634 (1876) ; Ex parte Bare, 76 Ind. SEC. 290.] BAIL IN HOMICIDE CASES. 327 Sec. 290. Failure of jury to agree. — The failure of a trial jury to agree is a proper fact to be shown on an appli- cation for bail pending a motion for a new trial ; ^ but it does not follow that the courts wUl, as a matter of course, admit to bail because the jury have failed to agree.^ The rule in such cases has been said by the supreme court of Ohio 3 to be that if, after trial and disagreement, on applica- tion for bail, the evidence is so weak that it would not sus- tain a verdict of guilty against a motion for a new trial, the court should admit the prisoner to bail. But the supreme court of Mississippi say in Beall v. State,* that a court may admit the defendant to bail in such a case, even though on the evidence the jury ought to have rendered a verdict of guilty ; but this is extreme doctrine and not thought to be sound law. It has been said that a miss-trial may be regarded as an important circumstance in an application for admission to bail, because it tends to show that the question of the guilt or innocence of a prisoner " stands indifferent." ^ In the case of People V. Goodwin,^ Justice Spencer says : " it appears to me from the facts before me, the conclusion is inevitable that it is quite doubtful whether the prisoner is guilty, and I think it stands indifferent whether he is so or not. I must pre- sume that the jurors are impartial, and that their final agree- ment proceeded from a conscientious difference of opinion as to the prisoner's guilt, and I am, therefore, bound to conclude that the prisoner may be innocent of the offence. In such a case, as I understand the law, he is entitled to be bailed," The effect of the disagreement of the jury upon the ques- tion of letting to bail depends materially upon the grounds of disagreement. If the disagreement be caused by the cap- tiousness or obstinacy of one juror it will be of no value whatever' in determining the question of bail; and if the disagreement be upon a matter of law the difference of 1 Beall r. State, 30 Miss. 715 (1861); 3 See State v. Summons, 19 Ohio, People V. Cole, 6 Park. Cr. Cas. (N. Y.) 139 (1850). 695 (1868); State v. Summons, 19 4.39 1^88,715(1861). Ohio 139 (1850) ; Webb v. State, 4 ^ People v. Perry, 8 Abb. (N. Y.) Tex. App. 167 (1879). Pr. N. S. 27 (1870) ; People v. Good- 2 State V. Summons, 19 Ohio, 139 win, 1 Wheel. Cr. Cas. (N. Y.) 434, (1850); Webb v. State, 4 Tex. App. 436 (1820). 167 (1879). 6 5 City Hall Rec. 11 (1820). 328 HOMICIDE. [chap. XII. opinion among the jurors will be entitled to no consideration by the court trjdng the question of bail ; but if the disagree- ment accrue out of an intelligent and conscientious differ- ence of opinion in relation to matters of fact proper to be considered by the jury, then such disagreement may properly be considered as creating an interference in favor of the prisoner. There are cases, however, in which bail has been allowed, for special reasons unconnected with the question of probable guilt or innocence, both before and after convic- tion.^ Sec. 291. Bail after conviction. — As a general rule, in a capital case the prisoner is not bailable, after conviction, on motion for a new trial.^ After a conviction for a lower degree of homicide, the right to bail is governed by the same rules as obtain in the case of other felonies, is a matter of discretion merely ; and in general should not be allowed, except where circumstances of an extraordinary character have intervened.'^ Under the Iowa Code ^ providing that where an appeal ^s taken from a judgment of imprisonment in the penitentiary, and the defendant is unable to give bail, the district court, may, in its discretion, order the sheriff to retain the defendant in custody to await the judgment. The district court has discretion to order a defendant convicted of murder in the second degree retained in custody, since that degree, being ^ Ex parte Dyson, ' 25 Miss. 359 bee, 60 Barb. (N. Y.) 480 (ISH) ; (1852) ; Commonwealth v. Archer, 6 People v. Lohman, 2 Barb. (N. Y.) Gratt. (Va.) 705 (1849) ; Common- 450 (1848) ; People !-. Bowe, 58 How. wealth V. Semmes, 11 Leigh (Va.) (N. Y.) Pr. 393 (1880) ; State v. 665 (1841) ; Hex v. Bishop, 1 Strange Ward, 2 Hawks. (N. C) L. 443 9 (1717). (1823) ; State v. Rutherford, 1 Hawks. 2 State V. Connor, 2 Bay. (S. C.) (N. C.) L. 457 (1821) ; State r. Daniel, 34 (1796). 8 Ired. (N. C.) L. 21 (1847) ; State v. 3 See^'.rprtrte Smallman, 54Cal.35 Satterwhite, 20 S. C. 536 (1883); (1879) ; Ex parte Marks, 49 Cal. 681 State v. Connor, 2 Bay. (S. C.) 34 (1875) ; People v. Perdue, 48 Cal. (1796) ; State v. Frink, 1 Bay. (S. C.) 552 (1874); Ex parte Hoge, 48 Cal. 168 (1791); Ex parte Ezell, 40 Tex. 3 (1874) ; Ex parte Voll, 41 Cal. 29 451 (1874) ; s.c. 19 Am. Rep. 32. See (1871) ; Miller v. State, 15 Fla. 575 also Ex parte Longworth, 7 La. An. (1876); Corbett v. State, 24 Ga. 391 247 (1852); Rex v. Saltash, 2 Show. (1857) ; Lumm v. State, 3 Ind. 293 93 (1681) ; Rex v. Reader, 1 Str. 531 (1852) ; Ex parte Dyson, 25 Miss. 356 (1736). Compare Governor v. Fay, 8 (1852); Davis v. State, 7 Miss. (6 La. An. 490 (185i>) ; Warnock »;. State, How.) 399 (1842) ; People v. Folras- 6 Tex. App. 450 (1879). SEC. 292.] BAIL IN HO^UCIDE CASES, 329 included within the term " murder," as defined by the Iowa Code,^ is within the prohibition of chapter 103, of the act of the Seventeenth General Assembly, providing that no defendant convicted of murder shall be admitted to bail. This act repeals section 4107 of the Iowa Code and all other inconsistent sections, permitting bail in certain cases.^ Sec. 292. Granting- and refusing l>ail — Procedure. — The general rules of procedure in the granting and refusing of bail in cases of homicide are the same as in other offences. The jurisdiction to admit to bail is generally exercised by means of writs of habeas corpus and certiorari^ or by both conjointly ; the first being for the prisoner and the latter for the record.^ Every court, judge, or other officer who has power to issue the writ of habeas corpus and to hear and deter- mine the same has power to admit the prisoner to bail, and most of the statutes so provide.* 1 la. Code, § 4529. 2 Baldwin v. Westenhaver, 75 Iowa 547 (1888) ; s.c. 39 N. W, Rep. 882. 3 20 Cent. L. J. 264. * See Callahan v. State, 60 Ala. 65 (1877) ; ex parte Clianey, 8 Ala. 424 (1845) ; Lynch r. People, 38 111. 494 (1865) ; Matter of Alexander, 59 Mo. 598 (1875) ; People v. Jefferds, 5 Park. Cr. Cas. (N.Y.) 518 (1861) ; People v. Goodwin, 1 Whetl. Cr. Cas. (N.Y.) 434, 436 (1820). A limitation upon the rule that every court which has power to issue the writ of habeas corpus, and to hear and determine the same, has power to admit the prisoner to bail, is found in a line of decisions which hold that under the seventh section of the Eng- lish Habeas Corpus Act the prayer for bail must be entered in a court which has jurisdiction to try. Rex v. Mackintosh, 1 Str. 308 (173.3); Rex V. Bishop of Rochester, Fort. 102 (1722) ; Rex v. Yate, Fort. 101 (1692) ; s.c. 1 Show. 190 ; Rex v. Leason, 1 Ld. Raym. 61 (1696) ; s.c. 1 Str. 308 n. ; Rex V. Piatt, 1 Leach Cr. L. 157 (1877). Compare Rex v. Orrery, 8 Mod. 96 (1723). In Alabama it may be made be- fore the circuit judge or chancellor at any time, and the affidavit of the prosecutor excusing the delay may be made at the same time. Ex parte Chaney, 8 Ala. 424 (1845). See Ex parte Campbell, 20 Ala. 89, 93 (1852) ; Ex parte Croom, 19 Ala. 561 (1851). The Supreme Judicial Court of Massachusetts will not entertain such an application, in a case where the prisoner is held under a criminal accusation and may be admitted to bail, if it be a bailable case, by an inferior court. Belgard v. Morse, 68 Mass. (2 Gray) 406 (1854). In New^ York it has been lield that an application for a discharge under such a statute may be made in the Supreme Court, which has general power to issue the writ of habeas cor- pus, and to hear and determine the same. People v. Jefferds, 5 Park. Cr. Cas. (X. Y.) 518 (1861). By the Pennsylvania statute the power to discharge, in such cases, is confided to the judges of the courts in which the indictment is pending; and, while the Supreme Court is bound to allow the writ of halieas corpus, yet they will not look further than to see that the commitment is unexception- 330 HOMICIDE. [chap. XII. In Rex V. Fitzgerald ^ the court refused to discharge a prisoner on a habeas corpus, charged with having murdered his wife in Ireland, communication having been made by the provincial to the home government on the subject and no answer received, and the prisoner having been in custody less than a year ; and it is said that bail in such a case will not be allowed until a year from the time of the first imprison- ment, although no proceedings have been taken by the crown. Sec. 293. Same — Review. — Admission to bail is not an adjudication that the defendant is not guilty of a capital of- fence,2 but the refusal of a court to hear evidence on an appli- cation for bail after indictment for a capital offence is such a final judgment as is reviewable on appeal ; -^ and the appellate court will review and weigh the evidence,^ and decide ac- cordingly, without regard to the decisions of the court below.^ able in tlie frame of it. Ex parte been changed. Ex parte Walker, 3 Walton, 2 Wliart. (Pa.) 601 (1837). Tex. App. 668, 672 (1878). In other states the rule obtains i Up. Can. (O. S.) 300. that the application must be made, in - Moore v. State, 36 Miss. 137 the first instance, to the court which (1858). has jurisdiction to try the offence for ^ j/j- parte Kendall, 100 Ind. 599 which the prisoner stands committed. (1884); Ex parte Heffren, 27 Ind. 98 £'x/)arteFennessy, 54 Cal. 101(1880); (1806); Lumm v. State, 3 Ind, 293 Matter of Spradlend, 38 Mo. 547 (1852). (1866). Where the venue has been < Ex parte Heffren, 27 Ind. 98 clianged, the application ought to be (1866). made to the court to which it has '' Ex parte Sutherlin, 56 Ind. 595 (1877). • CHAPTER XIIL CHANGE OF VENUE. Sec. 294. Application for change of venue. Sec. 295. Reasons for change — Local prejudice. Sec. 296. Same — Georgia doctrine. Sec. 297. AfBdavits and application — Weight and sufficiency. Sec. 298. Same — Counter-affi(h\vits. Sec. 299. Filing tlie indictment and transcript on change of venue. Sec. 294. Application for chang-e of venue. — As a gen- eral rule, an application for a change of the venue on the trial of an indictment for homicide is, like such appUcations in other cases, addressed to the sound discretion' of the court, ^ which will not be interfered with except when clearly abused ; but sometimes by statutory provision the court is deprived of its discretion, and the place of trial must be changed as a matter of right, upon the petitioner's compliance with the prescribed conditions. Thus it has been held that, with the exemption of the case of offences punishable with death from the provisions of the Illinois act of 18C1, requiring that the petitioner for a change of venue shall state the grounds of his belief, &c., leaves the court no discretion to refuse the application in a capital case.^ Sec. 295. Reasons for chang-e — Local prejudice. — A verdict of guilty of murder in the first degree will be set aside where it is apparent that from the prejudice existing a fair trial was not had, and where it is apparent tliat the court, of its own motion, should have changed the venue.^ Sec. 296. Same — Georgia doctrine. — Under the Georgia Code * providing that change of venue shall be granted only 1 Blackman v. State, 80 Ga. 785 (1872); Perteet r. People, 65 III. 230 (1888); s.c. 7 S. E. Rep. 626; State (1872). V. Perigo, 70 Iowa, 657 (1886) ; s.c. 3 Steagald v. State, 22 Tex. App. 8 Cr. L. Mag. 156; 28 N. W. Rep. 457. 464 (1886) ; s.c. 9 Cr. L. Mag. 515; 2 Rafferty v. People, 60 111. 118 3 S. W. Rep. 771. * Ga. Code, § 4687. 331 332 HOMICIDE. [chap. XIII. when the judge shall be satisfied, by an examination of the persons liable to serve, that an impartial jury cannot be ob- tained, does not, in so far as it regulates the manner in which the judge shall satisfy himself, violate the provisions of the Georgia constitution, restricting change of venue to cases in which the judge is satisfied that an impartial jury can be ob- tained in the county, but providing that the power is to be ex- ercised in such manner as has been or shall be provided by law.^ Sec. 297. Affidavits and application — Weight and suffi- ciency. — The application for change of venue must usually be accompanied by affidavits of reputable persons to the effect that they believe that the defendant will not be able to obtain a fair and impartial trial in the county, because of the prejudice therein existing against him.^ Where application is made for a change of venue in a murder case on account of the excite- ment and prejudice in the county, the full and decisive affi- davits of three disinterested witnesses make out a strong- prima facie case, only to be overcome by very strong nega- tive testimony.^ On an indictment for murder, when it appears from the affi- davits in support of the defendant's motion for a change of venue that the deceased was popular, well respected, and widely known; that the accused is a poor negro, without friends or influence ; that the killing was committed under circumstances calculated to arouse public indignation, and that great excitement followed ; that the danger of lynching was apparently so great that it was deemed necessary to order out the militia to protect the accused before and during his pre- liminary examination, and to remove him to another county immediately thereafter ; and it is stated that some of the jurors regularly summoned had threatened to " put an end to shoot- ing, and make short work of the murderer," — the trial court should grant a motion when the trial takes place only two and one-half months after these occurrences, although the state files counter-affidavits of many citizens that, in their opinion, the defendant can have as fair and impartial a trial in the county in which the indictment is laid as in any other county 1 Blackman v. State, 80 Ga. 785 " See Seams v. State, 84 Ala. 410 (1888) ; s.c. 7 S. E. Rep. 626. (1887) ; s.c. 9 S. AV. Kep. 5fi:l 3 State V. Nasli, 7 Iowa, 347 (1858). SEC. 298.] CHANGE OF VENUE. 833 in the state, but not denying the allegations of the other affidavits.^ Sec. 298. Same — Couuter-affidavit.s. — On an application for a change of venue in the trial of an indictment in a homi- cide case, the prosecution may file counter-affidavits both for the purpose of impeaching the credibility of affidavits filed for the petitioner,^ and also for adducing contrary proof to the effect that no prejudice exists.^ In the case of Meuly v. State * the appellant moved for a change of venue in the case, and based his motion upon the first ground that there existed against him so great a prejudice in the county that he could not obtain a fair and impartial trial. His application was controverted by the district attorney, under the provisions of the Texas statute,'^ and many witnesses were permitted to be examined on both sides as to the existence or non-existence of prejudice in the county. It was urgently insisted that such testimony was inadmissible and contravened the obvious purpose and intent of the statute, which, it was contended, limits and restricts the matters to be investigated solely to the credibility and means of knowledge of the defendant's compurgators in the application. In other words, that if the credibility and means of knowledge of the compurgators is alone authorized to be attacked, that this cannot be done by proof generally of the non-existence of prejudice, and that in such a contest it is error to go into a general investigation as to the existence or non-existence of prejudice. The court say: "Now what was the sole issue presented by the defend ant's application and the supporting affidavits of the com- purgators? It was the existence or the non-existence of prejudice. Their means of knowledge upon this matter was attacked. To show that such prejudice did not exist mani- festly tends most strongly to prove that they did not possess correct means of ascertaining the truth of the matter. Under this issue, as to tlie ' means of knowledge ' of the compurga- 1 Scams V. State, 84 Ala. 410 State, 26 Tex. App 274 (1888) ; s.c. (1887) ; s.c. 4 So. Rep. 521. 9 S. W. Rep. 563. 2 See Meuly v. State, 26 Tex. App. * 26 Tex. App. 274 (1888) ; s.c. 9 274 (1888) ; s.c. 9 S. W. Rep. 563. S. W. Rep. 563. 3 Seams v. State, 84 Ala. 410 ^^ Tex. Code Crim. Proc, art. 583. (1887) ; s.c. 4 So. Rep. -321 ; Meuly v. 33-1 HOMICIDE. [chap. XIII. tors, it has been more than once decided that the defendant ^youkl have the right to prove the existence of tlie prejudice by any witness besides the affidavit of his compurgators ; and, on the other hand, the state would have the right to prove tliat no such prejudice did, in fact, exist. The supporting affiants could be thoroughly tested as to their means of knowl- edge by either party." ^ Sec. 299. Filing the indictment and transcript on charge of venue. — It is a general rule that the original indictment must be filed in the court to which the trial of a prosecution for homicide is transferred ; ^ but in some states the trial may be had on a transcript furnished by the clerk of the court of original jurisdiction, and duly certified by him to contain a copy of the indictment, with all the indorsements thereon, and the entries and orders made in relation to the cause, in- cluding the order for the removal of the trial,^ and attested with the seal of such court.^ In Beauchamp v. State ^ the record showed that the de- fendant was indicted in the Vigo circuit court for the murder of G. M. ; that he pleaded there not guilty ; that he procured a change of venue for his trial on that indictment to the Parke circuit court ; that the clerk of the former court handed over the papers, and among them the indictment (which was spread on the record), to the clerk of the latter court, in which they were filed ; that the defendant was placed on his trial in the Parke circuit court, for the murder of G. M., on the plea of not guilty, theretofore entered in that behalf ; that he made no ol)jection to the indictment on wliich he was tried ; and that the indictment which was recorded in the last-named 1 Citing Kenning v. State, 24 Tex. ^ Brister v. State, 20 Ala. 107 App. 315(1887); s.c. 6 S. W. Kep. (1855). 137 ; Scott V. State, 23 Tex. App. * In a case where a prisoner charged 521 (1887); s.c. 5 S. W. Rep. 142; with a capital offence, the venue hav- Smith V. State, 21 Tex. App. 277 ing been changed, went to trial with- (1887) ; Pierson v. State, 21 Tex. out objecting tliat the record trans- App. 14 (1887) ; Davis v. State, 19 niitted was not attested by the seal of Tex. App. 201 (1886). the court, this was a waiver of the 2 See Sawyer ;■. State, 10 Ind. 08 defect, and the objection could not (1801) ; Beauchamp v. State, Blackf. afterwards be made. Major v. State, (Ind.) 209 (1842) ; Shoemaker v. State, 2 Sneed (Tenn.) 11 (1854). 12 Ohio, 43 (1843). 5 q Blackf. (Ind.) 300 (1842). SEC. 299.] CHANGE OF VENUE. 335 court, and on which the defendant was tried, was the one which was transferred among the papers in the cause. The court held that these facts showed that the indictment found against the defendant in the Vigo circuit was the one on which he was tried. CHAPTER XIV. COUNSEL. Sec. 300. Counsel for prosecution. Sec. 301. Counsel for defence — Common law doctri Sec. 302. Same — American doctrine. Sec. 303. Same — Canadian doctrine. Skc. 304. Same — Appointment of counsel. Sec. 305. Argument of counsel prosecuting. Sec. 306. Same — Misconduct in — Improper remarks. Sec. 307. Same — Abusive language — Exciting prejudice. Sec. 308. Same — Misstatement of facts — Assumptions. Sec. 309. Same — Commenting on failure to testify, &c. Sec. 310. Same — Discretion of court in granting new trial. Sec. 311. Argument of counsel defending. Sec. 312. Same — Limiting time of argument. Sec. 300. Coiin.sel for prosecution. — While it is possible for a person who has a cause in court to appear and prosecute it in person, such is not the case with a state, a county, or any other corporate body. In all prosecutions for homicide, as well as for other crimes, the regularly authorized prosecut- ing officer is the only attorney having the right to prosecute an indictment for homicide without special consent of the court ; but it is not improper for the court to permit him to be assisted by counsel ^ employed by relatives or friends of the deceased, or by other persons interested in punishing the offence with which the defendant is charged.^ The fact that there is a prosecuting officer for each district or other division of the state cannot prevent the general prosecuting officer of the state from assisting the local prose- cutor at a trial for homicide, at his option. Thus the attor- ney-general may properly assist the circuit attorney at a trial for murder, whether ordered by the governor to do so or not, and the prisoner cannot take just exception. -"^ 1 Rounds V. State, 57 Wis. 45 2 People v. Tidwell (Utah Ter.) (1883) ; s.c. 14 N. W. Rep. 865. 12 Pac. Rep. (il (1886). 3 State V. Hays, 23 Mo. 287 (1856). 336 SEC. 301.] COUNSEL. 33T Sec. 301. Counsel for defence. — Common law doc- trine. — At common law, in all cases, whether of treason, felony, or misdemeanor, and at all times, the prisoner has had and still has the right to address the jur}^ in person in his own defence ; but be he a peer or commoner he was not entitled to defend by counsel upon the general issue " not guilty " on an indictment for treason or felony ; ^ yet upon collateral facts, as a plea of sanctuary or a pardon, or upon the assignment of error to reverse a sentence of outlawry, prisoners under capital charges, whether of treason or of felony, were entitled to the assistance of counsel.^ However, the prisoner is not entitled to address the jury both by himself and by counsel. Lord Ellenborough says in the case of Ilex v. White : ^ "I am afraid of the confusion and perplexity that would arise if a cause were to be conducted at the same time both by counsel and the party himself. I am extremely anxious that a person accused should have every assistance in making his defence, but I must likewise look to the decent and orderly administration of justice. I therefore cannot allow counsel to examine witness for the defendant if he is likewise to put questions to them himself and afterwards to address the jury. " If, in the course of the trial, any point of law arises wiiich he declares himself incompetent to discuss, I will be very ready to hear it argued by his counsel, although he conducts the defence himself. I will do in this respect as was for- merly done in capital cases when the assistance of counsel was not permitted to prisoners upon matters of fact. I think I cannot consistently with my duty go further ; and surely there is no hardship in the rule I lay down. If the defend- ant has counsel to conduct his cause, he may suggest any question to them which he considers fit to be put, or if he takes the conduct of it upon himself, he may have the benefit of their private suggestions upon matters of fact ; and as soon as any point of law arises they shall be readily heard upon it." 1 1 Arclibold's Crim. Prac. and PI. " Foster's Crown Law, pp. 42, 46, (Pomeroy's ed.) 551 ; 1 Chitty's Cr. 56, 232 ; Ratcliff' s Case, 4 How. State Law, 407; Foster Crown Law, 231; Trials, 47 (1640). Hale P. C. 236, Hawk. P. C. b. 2, c. ^ 3 Campb. N. P. 98 (1811). 39, § 1 ; Weeks on Attorneys at Law, § 184. 22 338 HOMICIDE. [chap. XIV. The undoubted, weight of authority is in favor of the rule that a prisoner is in the hands of his counsel for every pur- pose, if he sees fit to employ counsel ; but so tender is the law about infringements of ancient rights that on a murder trial of a foreigner who had obstinately remained mute from malice for more than a year, the court refused to allow coun- sel to appear for the prisoner without his express consent.^ Sec. 802. Same — American doctrine. — In this country it is a universal principle of constitutional and statutory law that a prisoner charged with murder, or any other crime, is entitled to be defended by counsel.^ Sec. 303. Same — Canadian doctrine. — In Canada per- sons on trial for felony may make full defence by two coun- sel and no more, and before a jury wholly composed of persons skilled in the language of the defence.''^ Sec. 304. Same — Appointment of counsel. — In all prosecutions for homicide, as well as for other offences, the 1 Reg. ?;. Yscuado, 6 Cox C. C. 38G (1854). Enforced in Reg. r. Manzano, 2 Fost. & F. 64 (1860) ; s.c. 6 Jur. N. S. 400 ; Reg. v. Rider, 8 Car. & P. 539 (18;]8); s.c. 34 Eng. C. L. 880; Reg. V. Walkling, 8 Car. & P. 243 (1838); s.c. 34 Eng. C. L. 713; Reg. V. Bouclier, 8 Car. & P. 141 (1837) ; s.c. 34 Eng. C. L. 055 ; Reg. v. Taylor, 1 Fost. & F. 535 (1859) ; Reg. v. Teste, 4 Jur. N. S. 244 (1858) ; Reg. v. Bur- rows, 2 M. & Rob. 124 (1838). Rule relaxed in Reg. v. Malings, 8 Car. & P. 242 (1838) ; s.c. 34 Eng. C. L. 712 ; Reg. V. vStepliens, 11 Cox C. C. 669 (1871) ; Reg. v. AVilliams, 1 Cox C. C. 363 (1846) ; Reg. v. Dyer, 1 Cox C. C. 113 (1844). 2 Cooley's Const. Lim. 334. In all the states, except Virginia, there are constitutional provisions securing this privilege; and in that state it is secured by a statute of 1780. The statutory provisions in the various states are as follows : In Mississippi, South Caro- lina, and Texas, the language of the constitutional clause is too explicit to admit of doubt ; it gives the right " to be heard by himself or counsel, or both, as he may elect." In Arkansas, Colorado, Connecticut, Delaware, Illi- nois, Indiana, Kentucky, ^Missouri, New Hampshire, Ohio, Pennsylvania, Tennessee, Vermont, and Wisconsin, the language is "by himself and his counsel." In Kansas, Louisiana, and Nebraska, it is " in person or by coun- sel." In Alabama and Maine, it is "by himself and his counsel, or either, at his election." In Massachutts he "shall be fully heard by himself or counsel, at his election." In Cali- fornia, Florida, Nevada, and New York, he is " to appear and defend in person and with counsel, as in civil actions." In Georgia he "sliall have the privilege and benefit of counsel." In Iowa, Michigan, Minnesota, New Jersey, North Carolina, Rhode Island, and West Virginia, "he shall have the assistance of counsel in his de- fence." In Maryland it is declared that "he ought to be allowed counsid." See 21 Am. L. Reg. 635, 636; Wingo r. State, (Miss.) ; 6 Cr. L. Mag. 824 (1885). 3 Reg. r. Daoust, 8 L. C. Jur. 85 (1800). SEC. 304.] COUNSEL. defendant is entitled to the services of counsel ; and if lie has not the means with which to employ counsel, an attorne} must be assigned by the court to defend him;^ no attorne} is at liberty to decline such an appointment,^ even though he knows the prisoner to be guilty ; because, Avhether guilty or innocent, the prisoner has the right of defence, and it is the duty of the counsel assigned to see that the prisoner has a fair trial according to the law of the land " and to use all fair arguments arising on the evidence " to secure his acquit- tal.^ Judge Cooley says * that " having once engaged in a 1 See People v. Moice, 15 Cal. 329 (1800) ; 1 Bish. Cr. L. (3d ed.) 303. The first instance on record of the assigning of counsel to an indigent defendant prisoner is in tlie case of the trial of Rookwood et al., in wiiich Sir Bartliolomew Showers, assigned as counsel, addressing the court, said, "My Lord, we are assigned of counsel in pursuance of an act of Parliament, and we hope that nothing which we shall say in defence of our clients shall be imputed to ourselves. . . . We come not here to countenance the practices for which the prisoners stand accused, nor the principles upon which snch practices may be presumed to be founded; for we know of none, cither religious or civil, that can war- rant or excuse them." Lord Holt administered a very proper rebuke for these very improper remarks. 13 How. State Trials, 154 (1G9G). In strong contrast with this abject apol- ogy is the splendid bearing ofErskine on the trial of Paine. He said, " I will forever — at all hazards — assert the dignity, independence, and integ- rity of the English bar, without which impartial justice, the most valuable part of the English Constitution, can have no existence. From the moment that any advocate can be permitted to say that he will or will not stand between the crown and the subject arraigned in the court where he daily sits to practice, from that moment, the liberties of England al-e at an end." 8 Campbell's Lives of the Chancellors (8th ed.) 851; Sherwood's Leg. Eth. 94. See 21 Am. L. Reg. G31. ^ Vise V. Hamilton County, 78 111. 18 (1857) ; Wayne County v. Waller, 90 Pa. St. 99 (1879) ; House i'. Whitis 5 Baxt. (Tenn.) 090 (1875). 3 See Sherwood's Leg. Eth. 108. See also the criticisms upon the con- duct of Cliarles Phillips in the defence of Courvoisier, 24 Littell's Living Age, 179, et seq.; 25 Littell's Living Age, 289-312. In this case Courvoisier, a Swiss valet, had barbarously murdered his master, Lord William Russell, while asleep. Mr. Phillips and j\Ir. Clarkson were retained to defend him. Oh the second day of the trial Cour- voisier acknowledged to his counsel that he had committed the murder, at the same time saying that he wished them to defend him to the utmost. Upon hearing this confession Phillips at once formed the resolution of aban- doning the case, and so told his col- league, who said: "I am satisfied that my original impression was erroneous, but I have no riglit to throw up my brief and turn traitor to the wretch — wretch though he is — who lias confided to me " ; and suggested that they should take the opinion of Baron Parke who sat, during the trial, beside the Chief Justice, but did not try the cause. Baron Parke requested to know distinctly whether the prisoner insisted on Phillips defending him and on hearing tliat he did said that he " was bound to do so, and to use all fair arguments arising on the evidence." * Cooley's Const. Lim. (5th ed.) :]35. 340 HOMICIDE. [chap. XIV. cause, the counsel is not afterwards at liberty to withdraw from it without the consent of his client and of the court; and even though he may be impressed with a belief in his client's guilt, it will nevertheless be his duty to see that a conviction is not secured contrary to the law. The worst criminal is entitled to be judged by the laws ; and if his con- viction is secured by means of a perversion of the law, the injury to the cause of public justice will be more serious and lasting in its results than his being allowed to escape altogether." A person accused of homicide is entitled to a full, fair, and able presentation of his case in all courts wdiere it is con- sidered ; and it has been held that the gross ignorance, incom- petence, and imbecility of tlie attorney for a person charged with murder, whereby his defence is not fully and fairly pre- sented, may be good ground upon which to grant a new trial after a conviction for that offence.^ Sec. 305. Argument of counsel prosecuting. — The province of counsel in argument is to state to the jury the case and the facts pertaining thereto, and to sum up before them the evidence ; and where the prosecuting counsel exceed this, go beyond proof relating to the case, and the hypothesis upon which the prosecution is based, in order to create a prejudice in the minds of the jury against the defendant, and the court makes no attempt to counteract any effect which such action may have, the defendant does not receive an impartial trial, which is guaranteed to him by constitutional provision. In a prosecution for liomicide the opening statement of the case by the counsel for the prosecution is one requiring great latitude ; and it is not a matter which can he assigned as error that a hypothesis w^as stated to the jury by the prosecuting attorney which the evidence did not afterwards strictly prove. Thus an opening statement by the state's attorney, in a trial for murder, that the defendant had a difficulty with A B, in the evening preceding the homicide, and that A B procured a warrant for his arrest, and that the defendant then obtained a revolver with which he shot the sheriff wlien seeking to 1 See State v. Jones, 12 Mo. App.93 (1884). SEC. 306.] COUNSEL. 341 make the arrest, has been held to have been properly made as tending to disprove the theory of self-defence, even though the attorney was unable to find evidence to support all his statements.^ The argument upon the evidence, however, should always be confined strictly to the proof of the defendant's guilt, and tlie circumstances tending thereto. The criterion as to the reversal for erroneous remarks of prosecuting counsel is always the question whether such remarks or statements prob- ably had the effect of working to the prejudice of defendant with the jury .2 But the objection must be made at the time ; it comes too late after verdict.^ Sec. 306. Same — Misconduct in — Improper remarks. — The conduct and language of the prosecuting officer in the argument to the jury is largely within the discretion and control of the trial court in a homicide case, as well as in other cases.* The counsel, must, as a general rule, confine 1 State r. Meshek, 61 Iowa, 316 (1883). 2 See Cross v. State, 68 Ala. 476 (1881); People i;. Ah Fook, 64 Cal. 380 (1883) ; Petite i-. People, 8 Colo. 518 (1885); s.c. 9 Pac. Rep. 622; Blackman v. State, 78 Ga. 592 (1887) ; s.c. 10 Cr. L. Mag. 71; 3 S. E. Rep. 418 ; Earll v. People, 99 111. 123 (1881) ; BuUiner v. People, 95 III. 394 (1880) ; Epps V. State, 102 Ind. 539 (1885) ; s.c. 5 Am. Cr. Rep. 517 ; 1 X. E. Rep. 491 ; Ferguson v. State, 49 Ind. 33 (1874); s.c. 1 Am. Cr. Rep. 582; Johnson r. State, 63 Miss. 313 (1885) ; , Cavanagh v. State, .56 Miss. 299 (1879) ; State r. Walker, 98 Mo. 95 (1888); s.c. 9 S. W. Rep. 647 ; State r. Banks, 10 Mo. App. Ill (1882) ; Simmerman V. State, 16 Neb. 615 (1884) ; s.c. 21 N. W. Rep. .387 ; State i-. Mattliews, 80 N. C. 417 (1879); State r. Smith, 75 N. C. 306 (1876) ; Commonwealth r. Smith, 10 Phila. (Pa.) 189 (1873) ; Cartwrtght v. State, 16 Tex. App. 473 (1884) ; s.c. 49 Am. Rep. 826 ; Pur- year V. Commonwealth, 83 Va. 51 (1887) ; s.c. 9 Cr. L. Mag. 788 ; 1 S. E. Rep. 512; Price i'. Commonwealth, 77 Va. 393 (1883). 3 See Earll r. People, 99 111. 123 (1881) ; BuUiner v. People, 95 111. .394 (1880) ; Gillooley v. State, 58 Ind. 183 (1877) ; State v. Watson, C3 Me. 128 (1873) ; Commonwealth v. Worcester, 141 Mass. 58 (1886) ; s.c. 6 X. E. Rep. 700; State r. Forsythe, 89 M<>. 667 (1886) ; s.c. 1 S. W\ Rep. 834 ; Brad- shaw V. State, 19 Xeb. 644 (1886) ; s.c. 28 X. W. Rep. 323; McLain v. State, 18 Xeb. 154 (1885) ; s.c. 24 X. W. Rep. 720; Puryear v. Common- wealth, 83 Va. 51 (1887) ; s.c. 9 Cr. L. Mag. 788, 1 S. E. Rep. 512. * Morgan r. Hugg, 5 Cal. 409 (185-3) ; Duffin v. People, 107 111. 113 (1883) ; Shular r. State, 105 Ind. 289 (1885); s.c. 4 X. E. Rep. 870; Epps V. State, 102 Ind. 539 (1885) ; s.c. 5 Am. Cr. Rep. 517 ; 1 X. E. Rep. 492 ; Lafayette r. Weaver, 92 Ind. 477 (188.3); St. Louis & S. E. R. Co. r. Mathias, 50 Ind. 65 (1875); Bardeu r. Briscoe, 36 Mich. 254 (1877) ; Scripps V. Reilly, 35 Mich. 371 (1877) ; s.c. 24 Am. Rep. 575 ; State r. Hamil- ton, 55 Mo. 520 (1874) ; Loyd r. Han- nibal & St. J. R. Co. 53 Mo. 509 (1873) ; State r. Waltham, 48 M". 55 (1871) ; Rehberg v. Mayor, 99 342 HOMICIDE. [chap. XIV. himself to the facts brought out in evidence.^ Thus it has been hekl that where a counsel is permitted, over objection and exception, to comment on facts pertinent to the issue, but not in evidence, this will be error and sufficient excuse for o-rantiufr a new trial,^ because the law and rules of evi- dence are thereby violated and the full benefit of trial by jury is denied.^ The same is true of an appeal made to preju- dice, foreign to the case, not made by the evidence, and calculated to have an injurious effect upon the cause of the defendant.* The misconduct of the counsel may be so flagrant as to Avarrant the court in interfering without objection;^ and some cases hold that where the counsel grossly abuses his privileges, to the manifest prejudice of the defendant, it is the duty of the judge to stop him then and there, and that if he fails N. Y. 652 (1885) ; s.c. 2 N. E. Rep. 11 ; Larkins v. Tarter, 3 Sneed. (Tenn.) 681 (1856) ; Kaime v. Trus- tees, 49 Wis. 371 (1880) ; s.c. 5 N. W. Rep. 838 ; Hilliard New Trial, 225 ; Proffiit Jury Trial, § 249. 1 Dickerson v. Burke, 25 Ga. 225 (1858) ; Doster v. Brown, 25 Ga. 24 (1858) ; Read i-. State, 2 Ind. 438 (1850) ; Walker v. State, 6 Blackf. (Ind.) 1 (1841) ; State r. Lee, 66 Mo. 165 (1877) ; Loyd ik Hannibal & St. J. R. Co. 53 Mo. 509 (1873) ; Cook v. Ritter, 4 E. D. Smith (N. Y.) 253 (1855). 2 Yoe V. People, 49 111. 410 (1868) ; Kennedy v. People, 40 III. 489 (1866) ; Bill V. People, 14 111. 432 (1853) ; Brown v. Swineford, 44 Wis. 282 (1878) ; s.c. 28 Am. Rep. 582 ; 7 Cent. L. J. 208. 3 Wolffe V. Minnis, 74 Ala. 386 (1883) ; Cross i: State, 68 Ala. 476 (1881) ; Dickerson v. Burke, 25 Ga. 225 (1858) ; McNabb v. Lockhart, 18 Ga. 495 (1855) ; Hennies v. Vogel, 66 III. 401 (1872) ; Yoe v. People, 49 111. 410 (1868) ; Kennedy v. People, 40 111. 489 (1866) ; Bill v. People, 14 Rl. 432 (1853) ; Anderson v. State, 104 Ind. 467 (1885) ; s.c. 4 N. E. Rep. 63; Brow v. State, 103 Ind. 133 (1885) ; s.c. 2 N. E. Rep. 296; Epps V. State, 102 Ind. 539 (1885) ; s.c. 5 Am. Cr. Rep. 517 ; 1 N. E. Rep. 491 ; Bessette v. State, 101 Ind. 85 (1884) ; Proctor i'. DeCamp, 83 Ind. 559 (1882) ; Morrison v. State, 76 Ind. 335 (1881); Combs v. State, 75 Ind. 215 (1881) ; Ferguson v. State, 49 Ind. 33 (1874) ; Read v. State, 2 Ind. 438 (1850) ; People v. Dane, 59 Mich. 550 (1886) ; s.c. 26 N. W. Rep. 781 ; Cavanah v. State, 50 Miss. 299 (1879) ; Perkins v. Guy, 55 Miss. 153 (1877) ; State r. Jackson, 95 Mo. 623 (1888) ; s.c. 8 S. W. Rep. 749 ; State v. Lee, 66 Mo. 165 (1877) ; Bohanan v. State, 18 Neb. 57 (1885) ; s.c. 24 N. W. Rep. 391 ; Tucker v. Henniker, 41 N. H. 317 (1860) ; State v. Smith, 75 N. C. 306 (1876) ; Union Ins. Co. v. Cliecver, 36 Ohio St. 201 (1880); Cartwright ■ V. State, 16 Tex. App. 473 (1885) ; Brown v. Swineford, 44 Wis. 282 (1878) ; Proffat on Jury Trials, § 250. 4 See Hennies v. Vogel, 66 111. 401 (1872) ; Kinnaman v. Kinnamaii, 71 Ind. 417 (1880) ; Ferguson v. State, 49 Ind. 33 (1874); Tucker v. Henni- ker, 41 N. H. 317 (1860) ; State v. Smith, 75 N. C. 306 (1876). 5 Berry v. State, 10 Ga. 511 (1851) ; Saunders v. Baxter, 6 Heisk. (Tenn.) 369 (1871). SEC. 307.] COUNSEL. 343 to do so, and the impropriety is gross, it will be ground for a new trial.^ The weight of authority and reason, however, is thousrht to be to the effect that the court is under no obli- srations to interfere, and a failure to so interfere will not fur- nish ground for a new trial ;2 and such action by the court will be sustained in the appellate court, unless there has been a gross abuse of discretion.^ It has been held to be error for counsel for the state in a murder trial, in argument to the jury, to comment on the fre- quent occurrence of murder in the community and the forma- tion of vigilance committees and mobs, and to state that the same are caused by laxity in the administration of the law, and that they should make an examjjle of the defendant ; and for the court, upon objection by the defendant to such language, to remark to the jury that such matters are proper to be commented upon.'^ Sec. 307. Same — Abusive lang-iiage exciting prejudice. — Abusive language exciting prejudice is ground for revers- ing a conviction where it appears that the remarks were grossly unwarranted and improper, and where they were of a material character and calculated to injuriously affect the defendant's rights ; ^ but it was recently held by the Supreme Court of Michigan in the case of People v. Welch ^ that although the remarks of the prosecuting officer are to some extent improper, they are not a ground for reversal where there is no showing that the defendant was seriously prejudiced thereb}^ and no request was made for an instruction that such remarks should not be allowed to influence the verdict. Where a prosecuting officer in closing his address to the 1 Dickerson r. Burke, 25 Ga. 225 (1860) ; Gillooley v. State, 58 Iiid. (1858) ; Ferguson v. State, 49 Ind. 182 (1877) ; St. Louis S. E. R. Co. v. 33 (1874) ; Proctor v. DeCamp, 83 Myrtle, 51 Ind. 566 (1875). Ind. 559 (1882) ; State v. Guy, 69 ^ Forsyth v. Cothran, 61 Ga. 278 Mo. 430 (1879) ; Coble v. Coble, 79 (1878) ; Farman v. Lauman, 73 Ind. N. C. 589 (1878) ; State v. Under- 568 (1880) ; Kinnaman v. Kinnaman, wood, 77 N. C. 502 (1877) ; Jenkins 71 Ind. 417 (1880) ; St. Louis S. E. r. North Carolina Ore Dressing Co., R. Co. v. Myrtle, 51 Ind. 566 (1875). 65 N. C. 563 (1871) ; Devries v. Phil- * Ferguson v. State, 49 Ind. 33 lips, 63 N. C. 53 (1868) ; Hilliard on (1874). New Trials, 225. 5 pierson v. State, 18 Tex. App. 2 Davis V. State, 33 Ga. 98 (1861) ; 524 (1885). Tucker v. Henniker, 41 N. H. 317 « 45 N. W. Rep. 482 (1890). 344 HOMICIDE. [chap. XIV. jury said : " The defendant in this case has stooped so low as to drag before you the infidelity of liis dead wife, and to pub- lish her before the court-house as a prostitute," it was held that this language was not cause for new trial. The court i-emarking : " We cannot deny that this remark was unfair. A defendant has a right unquestionably to introduce all such matters of defence as are admissible and calculated to miti- gate, excuse, or justify his actions, and while the prosecuting officer has a right to comment upon the nature and character of such defences, still in doing so it is most improper to denounce and vilify him on account of his defences." ^ And in Martin v. State ^ the following language was held ground for reversal, to wit : The prosecutor said : " The defendant is a man of bad, dangerous, and desperate character, but I am not afraid to denounce the butcher boy, although I may, on returning to my home, find it in ashes over the heads of my defenceless wife and children." It has been said that simply referring to the defendant as " a murderer " is not ground for reversal ; ^ and in Anderson V. State,^ where the prosecuting officer called the defendant a " dirty dog," and stated that in separating the prosecuting witness from her companions he acted " like a dirty dog as he was," the court held this was not ground for a new trial, saying : " It was, strictly speaking, a breach of professional decorum to apply opprobrious epithets to the appellant in advance of the introduction of any evidence from which dis- paraging inferences might have been drawn, and the circuit court would have been justified in restraining the prosecuting attorney from the use of such epithets in a merely opening statement; but the breach of professional decorum thus involved, ought not to be regarded as of sufficient importance to cause a reversal of judgment." Sec. 308. Same — Misstatement of facts. — Assumptions. — A misstatement of facts, by the prosecuting officer in his argument to the jury, is always ground for the reversal of a conviction. Thus in his argument to the jury the prosecut- iPierson v. State, 18 Tex. App. 8 state r. Griffin, 89 Mo. 49 (1880); 524 (1885). s.c. 1 S. W. Kep. 87. 2 63 Miss. 505 (1886). * 104 Ind. 466 (1885) ; s.c. 4 N. E. Rep. 63. SEC. 309.] COUNSEL. 345 ing officer has no right to state as facts what he alleged had occurred in the case of another homicide similar to the one on trial.^ And where on a trial for murder, the defence being insanity, a remark of the district attorney to the jury, " You can make no mistake in convicting the defendant. If he were insane, the governor, the coui't, and I will secure a com- mission to inquire into the fact, and will see that no injus- tice be done him," was held to be ground for a new trial. The court say : '' That the remark prejudiced the juiy might be presumed from the fact that, although there were fifteen witnesses on the question of insanity, the jury, after consult- ing only half an hour, returned a verdict of guilt3%" ^ Any improper remarks or assumptions of the prosecuting officer in his address to the jury which tend to prejudice the jurors against, or otherwise injure the course of the defend- ant, will be ground for setting a verdict of conviction aside. Thus in the case of Cartwright v. State,^ on tlie trial of an in- dictment for murder, at the end of the opening address of the prosecuting attorney the audience applauded. In his closing argument the prosecuting attorney alluded to this, and ap- proved it. The court did not check or reprimand either the audience or the counsel, nor caution the jury. This, it seems, was error. But in a case where tliere was evidence that the defendant, under indictment for murder, was a herder on the plains; that he carried two revolvers and a knife, of which he made a display, and that his companions had four revolvers ; it was held that these facts warranted the district attorney in his argument to the jury in describing him as " Billy the Kid or Jesse James sort of a cowboy." ^ Sec. 309. Same — Coiniiientiiig' on failure to testify, etc. — The prosecuting officer should not be permitted to com- ment upon the failure of the defendant to testify ; ^ yet a 1 Cross I'. State, 68 Ala. 476 (1881). tance in such cases. People r. Ah 2 Commonwealth i.. Smith, 10 Phila. Fook, 04 Cal. 380 (1883). (Pa.) 189 (1873). s lo Tex. App. 473 (1884) ; s.c. Where counsel, on a trial for mur- 49 Am. Rep. 826. der, read from the cases where con- ■* Simmerman v. State, 16 Neb. 615 viction of innocent persons have been (1884) ; s.c. 21 N. W. Rep. 387. had on circumstantial evidence, the ^ p^^tp ,, graves, 9n Mo. 510 (1888); court may properly caution the jury s.c. 8 S. \Y. Rep. 739 : Cartwritjlit r. against attaching too much impor- State, 16 Tex. App. 473 (1884). Cases 346 HOMICIDE. [chap. XIV. conviction will not necessarily be reversed for an improper attempt on the part of the prosecuting attorney to comment on the fact that the defendant did not testify, the court at once interfering and duly warning the jury.i In Blackman v. State ^ upon an indictment for murder, the defendant, before the jury was impanelled, made a motion for a continuance on the ground of the absence of witnesses, and setting forth, in his motion, what he expected to prove by them. The witnesses were sent for, but were not called upon to testify. In his argument to the jury, the attorney for the state, against the objection of defendant's counsel, commented upon the failure of the defendant to prove what he said he could prove by the witnesses, and insisted that his failure was evidence of guilt, and this was held to be reversible error. Sec. 310. Same — Discretion of court in granting new trial. — It has been established by an almost if not quite unbroken line of decisions that going out of and beyond the evidence by prosecuting officers in their argument to the jury, can be a cause for reversal only when a " sound legal discretion " has been violated ; that is to say, the trial court exercises a discretion in controlling the address of counsel and in granting new trials on the alleged ground of miscon- duct in argument to the jury. The reason for this seems to be that the trial judge, witnessing the alleged error, is best prepared to say whether the defendant was injured by it.^ reversed for such error : Fletcher v. ^ Cases ■wrhere remarks of coun- State, 49 Iiul. 124 (1874) ; State v. sel were held to be sufficient Upham, 38 Me. 2(31 (1854) ; Devries cause for reversal : Mitchum v. V. Phillips, 03 N. C. 53 (18(J8) ; Bum- State, 11 Ga. 615 (1852) ; Yoe f. Peo- garner v. Manney, 10 Ired. (N. C.) L. pie, 49 111. 410 (1868) ; Farman v. 121 (1849). Cases where such argu- Lauman, 73 Ind. 568 (1881) ; Fergu- nient was held to be proper: Smiley son v. State, 49 Ind. 33 (1874) ; Win- V. Burpee, 87 Mass. (5 Allen) 568 ter r.Sass, 19Kan.557 (1878); Ornisby (1863) ; State v. Degonia, 69 Mo. 485 i-. Johnson, 1 B. Mon. (Ky.) 80 (1840) ; (1879) ; Chambers v. Greenwood, 68 Rolfe v. Rumford, 66 Me. 564 (1877); N. C. 274 (1873) ; Peebles i'. Norton, State v. Lee, G6 Mo. 165 (1877) ; State 64 N. C. 374 (1870) ; Gray v. Burk, v. Kring, 64 Mo. 591 (1877) ; State v. 19 Tex. 228 (1857). Reilly, 4 Mo. App. 392 (1879) ; State 1 Petite V. People, 8 Colo. 518 v. Kring, 1 Mo. App. 438 (1877) ; (1885) ; s.c. 9 Pac. Rep. 622. Brownlee v. Hewit, 1 Mo. App. 360 2 78 Ga. 592 (1887) ; s.c. 10 Cr. L. (1877) ; State v. Foley, 45 N. II. 466 Mag. 71; 3 S. E. Rep. 418. (1864) ; Tucker v. Ilenniker, 41 N. II. SEC. 311.] COUNSEL. 347 Regarding the effect of instruction to the jury to disregard the improper remarks of counsel there is a conflict, in the adjudged cases ; some claiming that the error, if any, is thereby cured, others contending that it is not.^ Sec. 311. Argument of counsel defending. — While it is always within the discretion and power of the court to limit the time of argument reasonably, yet it is the substan- tial right of the defendant to have his case fairly and fully argued, especially if the charge involves his life ; and where it clearly appears that his counsel were not allowed time sufficient for argument, he is entitled to a new trial." The usual order of argument requires that counsel for the defend- ant shall sum up the evidence in liis behalf before the closing argument for the prosecution, and the fact that the defence is insanity, and that, therefore, the defendant has the burden to prove it, does not so change the proper order of argument as to allow his counsel to open and close.''^ But where the order of argument is improperly changed, the defendant can- not be heard for the first time to complain in the appellate court.* 317 (1860) ; Fry v. Bennett, 3 Bosw. (N. Y.) 200 (1858) ; Coble i-. Coble, 79 N. C. 589 (1878) ; State v. Smith, 75 N. C. 306 (1876) ; Jenkins v. Ore Dressing Co., 65 N. C. 563 (1871) ; State V. Williams, 65 N. C. 505 (1871) ; Thompson v. State, 43 Tex. 268 (1875) ; Brown i\ Swineford, 44 Wis. 282 (1878). Cases ^w■here remarks of counsel •wrere held not error : Central R. Co. v. Mitciicll, 63 Ga. 173 (1879) ; Forsyth v. Cothran, 61 Ga. 278 (1878) ; Cobb r. State, 27 Ga. 698 (1859) ; McNabb v. Lockhart, 18 Ga. 495 (1855) ; Bulloch v. Smith, 15 Ga. 395 (1854) ; Berry v. State, 10 Ga. 511 (1851) ; Kennedy v. People, 40 111. 489 (1866) ; Combs v. State, 75 Ind. 215 (1881) ; St. Louis & S. E. R. Co. V. Mathi'as, 50 Ind. 65 (1875) ; State V. Johnson, 76 Mo. 121 (1882) ; State V. Mallon, 75 Mo. 355 (1882) ; State I'. Stark, 72 Mo. 37 (1880) ; Loyd I'. Hannibal & St. J. R. Co., 53 Mo. 509 (1873) ; State v. Underwood, 77 N. C. 502 (1877) ; Chambers v. Green- wood, 68 N. C. 274 (1873) ; Larkins V. Tartar, 3 Sneed. (Tenn.) 681 (1856). See Hoxie v. Home Ins. Co., 33 Conn. 471 (1866) ; Devries v. Haywood, 63 N. C. 53 (1868) ; Dickerson ;;. Burke, 25 Ga. 225 (1858) ; Doster v. Brown, 25 Ga, 24 (1858) ; St. Louis & S. E. R. Co, V. Myrtle, 51 Ind. 666 (1875) ; Read v. State, 2 Ind. 438 (1850) ; State V. Degonia, 69 Mo. 485 (1879) ; State V. Reilly, 4 Mo. App. 392 (1879) ; Free v. State, 1 MciMull. (S. C.) 494 (18.36) ; Saunders ;•. Baxter, 6 Heisk. (Tenn.) 369 (1871) ; Wightman v. Providence, 1 Cliff. C. C. 524 (1860). 1 Mitchum v. State, 11 Ga. 615 (1852) ; Rolfe v. Rumford, 66 Me. 564 (1877); Tucker r. Henniker, 41 N, H. 317 (1860). 2 People V. Keenan, 13 Cal. 581 (1859). See Kizer >: State, 12 Lea (Tenn.) 564 (188.3). 3 Loeffner v. State, 10 Obio St. 598 (1857) ; s.c. Law. Insan. 432. * People V. Ah Hop, 1 Idabo, 698 (1878). 348 HOMICIDE. [chap. XIV. The court lias control over the defendant's counsel and their arguments, as well as over the counsel for the prosecution ; and where they unduly press upon the jury the fact of the de- fendant's punishment, if he is convicted, it is not error for the court to check such remarks by counsel.^ Sec. 312. Same — Limiting time of argument. — Under the constitutional provisions heretofore recited'^ in all criminal prosecutions the accused has a right to be heard by himself or counsel, and it may be regarded as a settled law in the courts of this country, that any abridgment of this right which deprives the accused, on trial, of the time necessary to make his defence, fully and fairly, is an error for Avhich a new trial will be granted.^ But the right of the accused to be heard is no more generally recognized and sustained by authority than is the power of courts to prevent abuse by limiting the argument within reasonable bounds,* in the exercise of a "sound legal discretion.''^ Yet while insisting 1 State V. Dodson, 16 S. C. 453 (1881). 2 See ante, § 302. ^ People r. Keenan, 13 Cal. 581 (1859) ; State v. Hoyt, 47 Conn. 518 (1880) ; Williams v. State, 60 Ga. 367 (1878); Hunt v. State, 49 Ga. 255 (1873); Wliite v. People, 90 III. 117 (1878); Lynch v. State, 9 Ind. 541 (1857); State w. Riddle, 20 Kan. 711 (1878); Witifjo v. State, 62 Miss. 311 (1884) ; s.c. 6 Cr. L. Map;. 824; State V. Linney, 52 Mo. 40 (1873) ; State ;;. Pajje, 21 Mo. 257 (1855); State v. Collins, 70 N. C. 241 (1874); Dille V. State, 34 Oliio St. 617 (1878); Weaver v. State, 24 Oliio St. 584 (1874) ; Bowen v. State, 3 Tex. App. 617 (1878) ; Word ;;. Commonwealth, 3 Leigh (Va.) 743 (1831); Cooley Const. Lim. 336. * Dobbins v. Oswalt, 20 Ark. 619 (1859) ; People v. Keenan, 13 Cal. 581 (1859); State v. Hoyt, 47 Conn. 618 (1880) ; Williams v. State, 60 Ga. 367 (1878) ; Hunt r. State, 49 Ga. 255 (1873); White v. People, 90 11!. 117 (1878) ; Musselman v. Pratt, 44 Ind. 126 (1873) ; Lynch v. State, 9 Ind. 541 (1857); State i;. Kiddle, 20 Kan. 711 (1878) ; Wingo v. State, 62 Miss. 311 (1884) ; s.c. 6 Cr. L. Mag. 824; State V. Linney, 52 Mo. 40 (1873); Freligh V. Ames, 31 Mo. 253 (1860) ; State v. Page, 21 Mo. 257 (1855) ; State v. Col- lins, 70 N. C. 241 (1874); Dille v. State, 34 Ohio St. 617 (1878) ; Weaver V. State, 24 Ohio St. 584 (1874); Bowen v. State, 3 Tex. App. 617 (1878) ; Word v. Commonwealth, 3 Leigh (Va.) 743 (1831) ; Cooley Const. Lim. 3.36. 5 Brooks v. Perry, 23 Ark. ,32 (1861); Dobbins v. Oswalt, 20 Ark. 619 (1859); Hunt v. State, 49 Ga. 255 (1873) ; Musselman v. Pratt, 44 Ind. 126 (1873) ; Rosser v. McCoUy, 9 Ind. 587 (1857); Cory v. Silcox, 5 Ind. 370 (1854); State v. Williams, 69 Mo. no (1878); State v. Linney, 52 Mo. 40 (1873) ; Trice v. Hannibal & St. J. R. Co. 35 Mo. 416 (1865); Freligh v. Ames, 31 Mo. 253 (1860); State r. Page, 21 Mo. 257 (1855); Naughton v. Stagg, 4 Mo. App. 271 (1879) ; State v. Collins, 70 N. C. 241 (1874) ; Weaver v. State, 24 Ohio St. 584 (1874); Burson v. Mahoney, 6 Baxt. (Tenn.) 304 (1873). SEC. 312.] COUNSEL. 349 upon the right thus to limit the time of argument judges have universally displayed the utmost reluctance to exercise such power, because the right to " try nien by the hour-glass " is declared dangerous in the extreme.^ It has been said that if the privilege of counsel were not subject to any restraint as to the time consumed in argument, " the fair purpose for which courts of justice were instituted would or might be defeated."- Thus it is said by Judge Bynum, in the case of State v. Collins,^ that in an early North Carolina case ^ an eminent counsel of that state confusedly spoke against time to save the life of the accused by the ex- piration of the term of the court. In Kizer v. State, ° upon a trial for murder, the prisoner's counsel, three in number, were limited to seventy minutes for argument, which time they divided equally between them : on appeal it was held that while the action of the trial court in thus limiting them to so short a time, over their objection, was open to criticism, yet it was apparent that the evidence sustained the verdict, and that no injustice had been done, and, as the exception was general, a reversal should not be ordered.^ 1 People V. Keenan, 1.3 Cal. 581 (1859); Hunt v. State, 49 Ga. 255 (1873); Lynch v. State, 9 Ind. 541 (1857) ; Commonwealth v. Porter, 51 Mass. (10 Mete.) 2G3 (1845); State V. Collins, 70 N. C. 241 (1874) , Word V. Commonwealth, 3 Leigh (Va.) 743 (1831); Cooley Const. Li m. 336. 2 State V. Hoyt, 47 Conn. 518 (1880); s.c. 36 Am. Rep. 89; State r. Collins, 70 N. C. 241 (1874) ; s.c. 16 Am. Rep. 771; Week's Atty. § 111; Proff. Jur. Tr. 246. 3 70 N. C. 241 (1874) ; s.c. 16 Am. Rep. 771. * In re Spier, 1 I)cv. (N. C.) L. 491 (1828). 5 12 Lea (Tenn.) 564 (1883). 6 In People v. Keenan, 13 Cal. 581 (1879), the verdict in a capital case was set aside because the court limited the time for tlie argument against the prisoner's consent ; but the court did not question the right of the trial Judge to limit the counsel to a reason- able time. In State v. Hoyt, 47 Conn. 518 (1880) , s.c. 36 Am. Rep. 89, it is held that the restriction of an argument in a murder case to four hours on each side is valid. In Williams v. State, 60 Ga. 367 (1878) ; s.c. 27 Am. Rep. 412, it is held that in the trial of a felony, whether the prisoner is heard through one counsel or two, the length of the argument is not a matter for pre- determination by the court. In the pre- vious case of Hunt v. State, 49 Ga. 255 (1873), it was held error to limit the argument to forty minutes in the case of an assault with intent to murder. In State v. Collins, 70 N. C. 241 (1874) ; s.c. 16 Am. Rep. 771, it was held that in trials for cajiital offences the presiding judge has tiie right to regulate, by reasonable rules and reg- ulations, the arguments in the case, and that it was no good ground for a new trial that the counsel for the prisoner was limited by the court in his remarks to one hour and a half. 350 HOMICIDE. [chap. XIV. In Dille v. State, 34 Ohio St. 617 who were limited by the court to (1878)on the trial of one charged with thirty minutes in the argument to the a felony, eleven witnesses were exam- jury. This was held an abuse of ined, and the evidence, whicli occupied power which prevented a fair trial. one-Iialf a day in its delivery, was In the earlier case of Weaver v. State, circumstantial and conflicting. The 24 Ohio St. 584 (1874), a limitation accused was defended by two counsel, to five hours on a side was sustained. CHAPTER XV. ARRAIGNMENT AND PLEA. Sec. 313. Necessity and sufficiency. Sec. 314. Same — Ke-arraignment. Sec. 315. Waiver of reading on arraignment. Sec. 310. Witlidrawal of plea — Discretion of court. Sec. 317. Same — Statutory provisions. Sec. 318. Same — Hearing of evidence. Sec. 319. Pleading not guilty — Duty of court. Sec. 320. Same — Nolo contendere. Sec. 321. Pleading guilty — Ascertaining degree — Retraction of plea. Sec. 322. Pleading former jeopardy. Sec. 323. Same — What is a sufficient plea of. Sec. 313. Necessity and sufficiency. — It may be laid down as a general rule that, in all prosecutions for homicide, as well as for other crimes, the defendant must be arraigned in the court of trial,^ in order that he may have an oppor- tunity to plead to the indictment.^ Where the prosecution is for a capital offence, arraignment cannot be waived,'^ but it is thought that the defendant may waive the reading of the indictment.* It is held in Pate v. State ^ that it is essential to the suffi- 1 See People v. Gaines, 52 Cal. 480 408 (1876) ; Early v. State, 1 Tex. (1877) ; People v. CorLctt, 28 Cal. App. 248 (1876) ; Holden v. State, 330 (1865) ; Fletcher v. State, 54 Ind. 1 Tex. App. 225 (1876) ; Rex v. Lan- 462 (1876) ; Graeter v. State, 54 Ind. caster, 1 How. St. Tr. 39, 45, 46 159 (1870) ; PowelU'. United States, (1322); Anonymous, 3 Mod. 205 Morris (Iowa) 17 (18.39) ; State v. (1089) ; 4 Bl. Comm. 322. Knne, 32 La. An. 099 (1880); State - ^ee Steagald i'. State, 22 Tex. V. Epps, 27 La. An. 227 (1875) ; Opin- App. 464 (1886) ; s.c. 9 Cr. L. Mag. ion of Justices, 91 Mass. (9 Allen) 515; 3 S. W. Rep. 771; Nolen v. 585 (1864) ; Grigg v. People, 31 Mich. State, 8 Tex. App. 585 (1880). 471 (1875); Sartorious v. State, 24 3 Elick v. Territory, 1 Wash. Tr. Miss. 602 (1852) ; State v. Barnes, 136 (1861). 59 Mo. 154 (1875) ; People v. Bradner, < Minich v. People, 8 Colo. 440 107 N. Y. 1 (1887) ; s.c. 13 N. E. Rep. (1885) ; s.c. 5 Am. Cr. Rep. 20; 9 87; Pringle v. State, 2 Tex. App. 300 Pac. Rep. 4. See j>ost, § 315. (1877); Smith v. State, 1 Tex. App. ^ 21 Tex. App. 191 (1887). 351 352 HOMICIDE. [chap. XV. ciency of a conviction that the defendant plead to the in- dictment, or that the plea of not guilty be entered for liira ; which fact, on appeal, must appear in the final judgment brought up Muth the record. And if the record in the trial of an indictment for homicide fails to disclose affirmatively that a plea to the indictment was entered either by or for the defendant, such record on its face shows a mistrial, and that the proceeding was erroneous, at least ; and a recital in a bill of exceptions that the defendant pleaded not guilty will not supply the omission,^ because the record must show affirma- tively that the defendant was arraigned, or waived it, and that he pleaded to the indictment or information, or standing mute and refusing to answer, a plea was entered for him by the court.^ But it is thought that a formal plea of not guilty is not necessary to put the defendant on trial.-^ The failure of the court to arraign the defendant, or re- quire him to plead to the indictment, can only be saved by presenting the omission as a ground for a new trial.^ This is because of it being tlie duty of the lower court to require a plea before proceeding with the trial, and it must be presumed that the court performed its duty, and when nothing to the contraiy appears, it will be presumed that a j)lea was required and interposed. The appelhite court must presume in favor of the regularity and validity of the proceedings of the lower courts, until tlie contrary is made to appear b}' the record.^ It is said that the person must answer for himself, and in his own proper person, unless lie is shown to be incapacitated, when counsel may plead " not guilty '' for him.*^ Thus in Elick V. Territory " the record of the proceedings on an indictment for murder contained the following entry : " Comes now C, 1 Bovven ;■. Stnte, 108 Ind. 411 (188:3); Indianapolis v. Murphy, 91 (188()) ; s.c. 9 N. K. Rep. 378. Ind. 382 (188;3) ; Drinkout v. Eagle -Siioffner v. State, 93 Ind. olO Mncli. Works, 90 Ind. 423 (l^^-^) ; (1883); Tindali v. State, 71 Ind. 314 Brown r. Anderson, 90 Ind. 93 (18«3); (1880); Fletcher v. State, 54 Ind. Powers r. State, 87 Ind. 144 (1882); 462 (1876); Graeter r. State, 54 Inil. i'nett v. Heard, 86 Ind. 104 (1882); 159 (1876); McJunkins v. State, 10 Ilouek r. Bartlioid, 73 Ind. 21 (1880); Ind. 140 (1858). Bowen r. Pollard, 71 Ind. 177 (1880); 3 People r. Bradner, 107 X. Y. 1 Crowell v. Peru, 41 Ind. 308 (1872). (1887) ; s.c. 13 N. E. Rep. 87. « Eliek v. Territory, 1 Wash. Tr. ■» Billings V. State, 107 Ind. 54 130 (1861). (1886) ; s.c. 6 N. E. Rep. 914. " 1 Wash. Tr. 136 (1861). '^ See ShofCner v. State, 93 Ind. 519 SEC. 315.] ARRAIGNMENT AND PLEA. 353 who prosecntes in behalf of the territory, and the defendant in his own proper person and by his attorneys. The prisoner on being asked as to his right name replied that it was ' Elick.' Arraignment of prisoner waived by counsel, and upon being asked as to the charge in the indictment pleaded ' not guilty ' by counsel." The arraignment and plea were held not to be sufficient, and that all subsequent proceedings were without warrant of law. But where a defendant on his arraignment makes no answer personally, but his attorney, in his presence, pleads " not guilty," himself standing mute, the arraignment and plea are sufficient.^ Sec. 314. Same — Re-arraig-nment. — When a defendant has been once arraigned, and has pleaded to an indictment for murder on a former trial, re-arraignment is unnecessary .^ Sec. 315. Waiver of reading on arraignment. — It is well settled that whatever the constitution or statute law of the state requires to be done in homicide cases, is essential to the jurisdiction and power of the court to convict, and can- not be omitted or waived.^ And for this reason it has been held that a waiver of the reading of the indictment does not affect the validity of the trial in those cases where a copy of the indictment has been furnished to the person as required by statute.'* In Cantwell v. State ° it is said that in Ohio it is well established that the defendant cannot be prejudiced by his waiver of any statutory requisite in the prosecution of a criminal case ; ^ but in the more recent case of Billigheimer V. State,^ it is maintained that in the trial of the highest grade of crimes, it is not in the power of the accused to waive a trial by jury.^ 1 People V. McCoy, 71 Cal. .395 (1885) ; s.c. 5 Am. Cr. Rep. 20 ; 9 (1886) ; s.c. 12 Pac. Rep. 272 ; Stewart Pac. Rep. 4 ; Goodin v. State, 16 Oliio V. State, 111 Ind. 554 (1887); s.c. St. 345 (1865). 13 N. E. Rep. 59; Bateman v. State, 64 ^ ig O'-.io St. 477, 481 (1869). Miss. 233 (1886) ; s.c. 1 So. Rep. 172. ^ Citing Goodin v. State, 16 Oliio ^ State V. Boyd, 38 La. An. 374 St. 345 (1865) ; Williams v. State, (1886); State r." Johnson, 10 La. An. 12 Ohio St. 622 (1861); Doyle v. 457 (1855). State, 17 Ohio, 225 (1848). 3 Goodin V. State, 16 Ohio St. 345 "^ .32 Ohio St. 435, 441 (1877). (1865) ; Williams v. State, 12 Ohio « Citing Cantwell r. State, 18 Ohio St. 622 (1861); Doyle v. State, 17 St. 477 (1869); Goodin v. State, 16 Ohio, 222 (1848). Ohio St. 345 (186-5). See post, §§ 352 * See Minicli v. People, 8 Colo. 440 to 383. 23 354 HOMICIDE. [chap. XV. Sec. 316. Withdrawal of plea. — Discretion of court. — A motion to withdraw a plea of guilty in order to allow the defendant to demur or plead insanity, or a motion to with- draw a plea of guilty, before judgment, is addressed to the sound discretion of the court.^ In those cases where the proper showing of facts is made by affidavit it is an abuse of judicial discretion not to allow the withdrawal of a plea of guilty and permit a plea of not guilty to be entered in its stead. Such a showing of facts is made when the affidavit discloses (1) that the affiant is not guilty of the crime charged ; ^ (2) that it is the first offence ; ^ (3) that the plea of guilty was entered through indifference and without due deliberation or consulta- tion ; 3 (4) that the plea of guilty was entered from the hope that the punishment to which the accused would otherwise be exposed might be mitigated ; * (5) that the plea was entered through mistake ; ^ or (6) that the defendant was ignorant of the law and was arraigned without the privilege of consulting counsel.'' But where the parties regarded the plea of not guilty on arraignment as having been withdrawn for the purpose of a motion to dismiss the indictment only, and proceeded to trial on the understanding that it was reinstated when the motion was denied, an objection that the defendant was tried without being arraigned or pleading to the indictment is not tenable." A withdrawal of the plea of guilty has been permitted where it was forced upon the defendant through the fear of 1 Commonwealth v. Clmpman, 65 sound judicial discretion, had the Mass. (11 Cush.) 422 (1850). See 11 special judge permitted the with- Cr. L. Mag. 479; 17 Am. L. Rev. 567. drawal of the plea of guilty, and the 2 Myers v. State, 115 Ind. 554 entry, in its stead, of the usual plea. (1888); s.c. 18 N. E. Rep. 42; Mas- Tlie law is not composed of a series tronada v. State, 60 Miss. 87 (1882). of snares and pitfalls for the unwary, 3 People V. McCrory, 41 Cal. 458 neither does it favor wliat Judge Bliss (1871); Gardner v. People, 106 111. terms 'snap judgments.' Honslce r. 76 (1883); s.c. 4 Cr. L. Mag. 881. ' Cannefax, 40 Mo. 295. If these re- * People V. McCrory, 41 Cal. 458 marks apply in a civil case, then a (1871); Myers i'. State, 115 Ind. 554 fortiori in a criminal prosecution, (1888); s.c. 18 N. E. Rep. 42 ; Stephens where the liberty of the prisoner is at V. St.-vte, 71 Mo. 535 (1880); s.c. 11 stake." Cent. L. J. 5. In the last case the ^ T>nyis r. State, 20 Ga. 674 (1856). court say : " Viewing the matter, then, ^ Myprs v. State, 115 Ind. 554 in either light, we feel constrained to (1888) ; s.c. 18 N. E. Rep. 42. say that it would better have com- " People v. Bradner, 107 N. Y. 1 ported with tlie proper exercise of a (1887) ; s.c. 13 N. E. Rep. 87. SEC. 316.] ARRAIGNMENT AND PLEA, 355 improper violence.^ In Myers v. State ^ tlie defendant pleaded guilt}', was sentenced to ten j-ears' imprisonment, and the judgment was signed by the judge. On the next morning, and during the term of court, the defendant moved to be allowed to substitute a plea of not guilty, and presented 1 Sanders v. State, 85 Ind. 318 (1882) ; s.c. 4 Cr. L. Mag. 359. It seems that in such a case, where there has been an error of law, the remedy is by that of recommendation to par- don signed by the judges, wliich will be granted as a matter of course. See Reg. V. Murphy, L. R. 2 P. C. 35 and 535 (1869). Where the error is one of fact the remedy is by a pro- ceeding called a writ of error coram 7iobis. This formerly was a very com- mon remedy in civil actions, but was seldom resorted to in criminal cases. Although rarely used in criminal cases, we find it conceded by courts and writers to be an appropriate rem- edy in criminal prosecutions, as well as in civil actions. Judge Cooley, in a note to Blackstone's Commentaries, says : " In this chapter Sir William Blackstone has considered only the modes by which a judgment may be reversed by writ of error, brought in a court of appeal, and has stated that this can be done only for error in law. There is, however, a proceeding to reverse a judgment by writ of error in the same court, where the error complained of is in fact and not in law, and where, of course, no fault is imputed to the court in pronounc- ing its judgment. This writ is called the writ of error coram nobis, or tlie writ of error coram vohis, according as the proceedings are in tlie King's Bench or in the Common Pleas, be- cause the record is stated to remain before us (the king) if in the former, and before you (the judges) if in the latter, and is not removed to another court. In this proceeding it is neces- sary, of course, to suggest a new fact upon the record from which the error in the first judgment will appear; thus supposing the defendant, being an infant, has appeared by attorney instead of guardian, it will be neces- sary to suggest this fact, of which the court was not before informed." In the note to Jaques v. Cesar, 2 Saund. 100 (1G71), the early English cases are cited, showing the scope, character, and effect of the writ. The common law doctrine is also discussed in Bac. Abr. tit. " Error " ; Com. Dig. tit. "Proceedings in Error," 2 Tidd. Pr. 1136; 7 Rob. Pr. 149; Steph. PI. 118. It is recognized in many of the states of the Union as forming a part of the law of the land. See Hol- ford V. Alexander, 12 Ala. 280 (1847) ; Adler v. State, 35 Ark. 517 (1880); McKinnoy v. Western Stage Co. 4 Iowa, 420 (1857) ; Meredith v. San- ders, 2 Bibb. (Ky.) 101 (1810) ; Duff V. Combs, 8 B. Mon. (Ky.) 386 (1848) ; Combs V. Carter, 1 Dana (Ky.) 178 (18.33); Kemp v. Cook, 18 Md. 130 (1861) ; Hawkins v. Bowie, 9 Gill. & J. (Md.) 428 (18.38); Teller v. Wetherell, 6 Mich. 46 (1858) ; Land v. Williams, 20 Miss. (12 Smed. & M.) 362 (1849) ; Keller r. Scott, 10 Miss. (2 Smed. & M.) 82 (1844); Powell v. Gott, 13 Mo. 458 (1850); ex parte Toney, 11 Mo. 662 (1848); Calloway v. A'ifong, 1 Mo. 223 (1822); Higbie v. Corn- stock, 1 Den. (N. Y.) 652 (1845); :Malier v. Comstock, 1 How. (N. Y.) Pr. 175 (1845); Smith v. Kingsley, 19 Wenree. Johnson v. State, 29 Ark. 31 (1874); 2 Jordan !•. State, 81 Ala. 20 (188(5). s.c. 21 Am. Hep. 154 ; Smith r. State, Compare Johnson r. State, 21) Ark, 22 Tex. App. 31(5 (1886) ; s.c. 3 S. W. 31 (1874) ; s.c. 21 Am. Rep. 154. Rep. 684 ; Cheek c. State, 4 Tex. App. ^ State r. Dennison, 31 La. An. 444 (1879). Compare State v. Ander- 847 (1879) ; State v. Byrd, 31 La. An. son, 89 Mo. 312 (1886) ; s.c. 8 Cr. L. 419 (1879). Mag. 519 ; 1 S. W. Rep. 135; State •* Conner v. Commonwealth, 13 V. Simms, 71 Mo. 538 (1880) ; State Bush (Ky.) 714 (1878). V. Smith, 53 Mo. 1.39 (1873) ; State r. 5 5 inj. 507 (1854). KrinfT, 11 Mo. App. 92 (1883) ; which c cicm v. State, 42 Ind. 420 (1874) ; hold that, under the Missouri consti- s.c. 13 Am. Rep. 369; 2 Gr. Cr. Rep. tution of 1875, art. 2, § 23, a convic- 687. SEC. 323.] ARRAIGNMENT AND PLEA. 361 operate as a bar to a subsequent prosecution ; ^ but lack of jurisdiction, where made ground for an arrest of judgment on the defendant's motion, will not bar a subsequent trial.- Sec. 323. Same — AVIiat is a sufficient plea of. — In Clem V. State,^ to an indictment for murder in the fii\st dco-ree for the killing of A, the defendant entered a special pica in bar, that she had been indicted for murder in the first degree for killing one B ; that she had been tried by a jury upon said indictment on a plea of not guilty, and that upon such trial she was found guilty of murder in the second degree, and sent to the state prison for life ; by which finding and judgment she was acquitted of the charge of murder in the first degree as charged in said indictment; and the crime charged in said indictment, for which she was tried and acquitted, "-was and is identical in all its parts, incidents, and circumstances, with the crime charged in the indictment for the killing of ' A ' ; that the evidence whereby alone the state will attempt to prove the indictment in this cause is the same and nowise different from that employed and produced upon the trial of the indictment on which she was acquitted of murder in the first degree ; and this she is ready to verify," »Scc. This was held to be a good plea. 1 Gunter v. State, SO Ala. 90 (1888) ; - Small v. State, 63 Ga. 386 (1879). s.c. 10 Cr. L. Mag. 428 ; 3 So. Rep. » 42 Ind. 420 (1874) ; s.c. 13 Am. 600. Rep. 369 ; 2 Gr. Cr. Rep. 687. CHAPTER XVI. SERVICE OF INDICTilENT. Sec. 324. Right to. Sec. 325. Incorrect copy. Skc. 326. Time of service. Sec. 327. Waiver of service. Sec. 324. Right to. — It is often provided by statute that a person indicted for felony, punishable capitally or otherwise, shall be entitled to have served upon him a copy of the in- dictment, either before arraignment or at the trial.^ The right to a copy of the indictment in all cases of homicide is secured by statute in most of the states ; "^ and where such a statute exists it is error to force the accused to proceed to trial without furnishing him with such a copy.^ In the federal courts a person indicted for a felony not capital is not entitled to a copy of the indictment at the 1 Minich V. People, 8 Colo. 440 (1885) ; s.c. 5 Am. Cr. Rep. 20. See Scott V. State, 37 Ala. 117 (1861) ; McCoy V. State, 46 Ark. 141 (1885) ; Touts V. State, 8 Ohio St. 98 (1857) ; State r. Winningham, 10 Rich. (S. C.) L. 257 (1857); Johnson r. State, 4 Tex. App. 268 (1879). If a copy of the indictniont, as originally found by the grand jury, is served upon the prisoner while in con- finement, the validity of the service is not affected by the fact that a nolle prosequi liad been entered as to one of the counts. Scott v. State, 37 Ala. 117 (1861). In the case of State v. Winning- ham, 10 Rich. (S. C.) L. 257 (1857), it is said that uniler tlie South Caro- lina statute (Act 1731, § 43) a pris- oner, indicted for a capital offence, is entitled, if he requires it, and upon payment of the fees for copying it, 302 to a copy of the indictment, three days before he is tried. The demand for a copy should be made, at the latest, when he is arraigned, and in open court. The three days are to include the whole of the day on which the motion is made. See State v. Briggs, 1 Brev. (S. C.) L. 8 (1794). 2 Dawson v. State, 29 Ark. 116 (1874); Gnatt's Dig. Ark. Sec. 1825; Friar v. State, 4 Miss. (3 How.) 422 (1839) ; IVIoses v. State, 9 Baxt. (Tenn.) 229 (1877). 3 Bain ;•. State, 70 Ala. 4 (1881) ; Nutt V. State, 63 Ala. 180 (1879); Driskill v. State, 45 Ala. 21 (1871) ; McKinncy v. People, 7 111. (2 Gilm.) 540 (1845) ; s.c. 43 Am. Dec. 65; Moses V. State, 9 Baxt. (Tenn.) 229 (1877) ; Nokes r. State, 6 Coldw. (Tenn.) 297 (1869) ; United States v. Bickford, 4 Blatchf. C. C. 337 (1859). SEC. 326.] SERVICE OF INDICTMENT. 363 expense of the government,! the statutory requirements for a copy of the indictment and a list of the witnesses being confined to prosecutions for treason. ^ Sec. 325. incorrect copy. — The service of an incorrect copy is not sufficient, and it has been hekl to be error to rule the defendant to trial on the service of such a paper.^ On the other hand, it has been held that mere clerical error in the middle initial of the defendant's name in the copy of the indict- ment served is not so prejudicial to the prisoner's interest as to be ground for a continuance.* But the omission to serve a copy, or its untimely service, or the service of an incorrect copy, will be waived by pleading to the indictment without making a demand,^ or taking exceptions to the absence of such service, or its insufficiency ; ° also by going to trial with- out objection.' Sec. 326. Time of service. — When the statute requires a copy of the indictment to be served before trial, the words " before trial " refer to the trial before the jury and not to any preliminary arraignment.^ 1 United States r. Biokford, 4 Blatchf. C. C. 3:57 (1859). 2 United States v. Wood, 3 "Wash. C. C. 440 (1818). See United States V. Williams, 1 Cr. C. C. 178 (1804). 3 Thus in Nutt v. State, 63 Ala. 180 (1879), the defendant was indicted for the murder of Luke Hodnett, and a copy of the indictment served upon him described tlie person slain as Luke Hadnett, and the conviction was re- Tersed. 4 Fortenberry v. State, 55 Miss. 403 (1877). 5 See Wade v. State, 50 Ala. 164 (1874) ; Ben v. State, 22 Ala. 9 (1853); s.c. 58 Am. Dec. 234; Jolinson r. State, 43 Ark. 391 (1884); Minich i: State, 8 Colo. 440 (1885) ; s.c. 9 Pac. Rep. 4; McCall v. United States, 1 Dak. 320 (1876) ; Loper v. State, 4 Miss. (3 How.) 429 (1839) ; State r. Johnson, 1 Miss. (Walk.) .393 (1831); Record r. State, 36 Tex. 521 (1871) ; LTnited States v. Curtis, 4 Mas. C. C. 232 (1826) ; United States v. Cornell, 2Mas. C. C. 91 (1820). 6 Logan V. State, 50 Miss. 269 (1874) ; State v. Waters, 1 Mo. App. 7 (1877) ; Taylor v. State, 11 Lea (Tenn.) 709 (1883); Peterson i-. State, 45 Wis. 535 (1878). " Clarke v. State, 78 Ala. 474 (1885) ; s.c. 8 Cr. L. Mag. 19 ; Miller r. State, 45 Ala. 24 (1871) ; Wright v. State, 42 Ark. 94 (1883) ; State v. Russell, .33 La. An. 135 (1881) ; State v. Jackson, 12 La. An. 679 (1856) ; Lord V. State, 18 N. H. 173 (1846) ; Fonts V. State, 8 Ohio St. 08 (1857) ; Taylor v. State, 11 Lea (Tenn.) 108 (1883). Compare Robertson v. State, 43 Ala. .325 (1869). 8 United States v. Neverson, 1 Mackey (D. C.) 152 (1880) ; United States V. Curtis, 4 Mas. C. C. 232 (1826). As to the time of service of copy in an indictment and to the method of computation of time, see Bain v. State, 70 Ala. 4 (1881); Rogers i-. State, 50 Ala. 102 (1874) ; State V. McLendon, 1 Stew. (Ala.) 19;j (1827) ; State v. Kane, 32 La. An. 999 (1880) ; State i-. Toby, 31 La. An. 364 HOMICIDE. [chap. XVI. Skc. 327. Waiver of service. — Where the statute requires that a copy of the indictment be furnished before arraignment, a failure to furnish such copy will not be ground for arrest of judgment; it is simply ground for a new trial, and is waived by pleading and going to trial without a copy,i be- cause if the defendant does not so receive a copy of the indict- ment he must object to the omission before trial, and if he goes to trial without objecting it is a waiver of his privilege, and he cannot thereafter move in arrest of judgment because of such omission.2 Thus it was held by the supreme court of Ohio, in tlie case of Fonts v. State,^ that where a prisoner under indictment for murder wishes to avail himself of the omission to furnish him with a copy of the indictment " at least twelve hours before trial," he must declare it, by motion, before trial, or interpose it as an objection to being put on trial, and show the omission on record by bill of exceptions.* Where the statute requires the indictment to be served upon the accused before arraignment, the prisoner may waive the reading thereof,-'* for the very sufficient reason that the only object of reading the indictment on arraignment is to inform the accused of the charge he is to meet, and the statu- tory requirement of furnishing the prisoner with a copy of the indictment is a better means of information to him of the charge than the reading of the indictment to him.*^ 756 (1879); State y. Briggs, 1 Brev. der, the word "name" in the formal in- (S. C.) L. 8 (1794); Speer v. State, troductory clause was written " same," 2 Tex. App. 246 (1878) ; United has been held to be frivolous and the States V. Neverson, 1 Mackey (I). C.) copy to be "correct," within tlie re- 152 (1880) ; United States v. Courtis, quirement of Paschal's Tex. Dig. art. 4 Mas. C. C. 232 (1826). 29:39; in Johnson v. State, 4 Tex. App. 1 McCoy V. State, 46 Ark. 140 268 (1879). (1885) ; Johnson v. State, 4-3 Ark. 5 See Minich r. People, 8 Colo. 440 391 (1884); Fouts v. State, 8 Ohio (1885); s.c. 5 Am. Cr. Rep. 20; Fitz- St. 98 (1857). Patrick r. People, 98 111. 259 (1881) ; '■^ McCoy V. State, 46 Ark. 141 Goodwin v. State, 16 Ohio St. 345 (1885). (1865). 3 8 Ohio St. 98 (1857). « Fitzpatrick v. People, 98 111. 250 * But an objection that in the (1881). See Minich !». People, 8 Colo, served copy of an indictment for niur- 440 (1885) ; s.c. 5 Am. Cr. Rep. 20. CHAPTER XVII. THE TRIAL. Sec. 328. Right to speedy trial. Sec. 329. Discharge on failure to try. Sec. 330. Fixing time of trial — Kights of defendant. Sec. 331. Postponement of trial. Sec. 332. Continuance to secure witness. Sec. 333. Same — When refused. Sec. 334. Continuance to secure counsel. Sec. 328. Right to speedy trial. — Wliile prosecutions for homicides of all grades are governed by the same general rules of practice as are all other prosecutions for felony, yet, in such cases involving consequences so serious to the accused, the court should proceed carefully, and with the utmost regard for the defendant's rights. The accused has the .constitu- tional guarantee ^ of a speedy trial,^ at such time after the 1 See Ala. Const, art. I. § 7 ; Ark. Const, art. 11. § 10 ; Cal. Const, art. I. § 13; Colo. Const, art. 11. § 16; Conn. Const, art. I. § 9 ; Del. Const, art. I. § 7; Fla. Const, art. I. § 10 ; Ga. Const, art. I. §7; 111. Const, art. I. §9; Iowa Const, art. I. §10; Kan. Const. § 10 of the Bill of Kights ; Ky. Const, art. 13, § 12; La. Const, tit. 1, art. VI. ; Me. Const, art. I. § ; Md. Const, art. XXI. of the Declaration of Rights; Mich. Const, art. I. § 10; Minn. Const, art. I. § 6 ; Miss. Const, art. I..§ 7; Mo. Const, art. L § 18; Neb. Const, art. I. § 7 ; N. J. Const, art. L § 8 ; Ohio Const, art. I. § 10 ; Pa. Const, art. I. § 9; R. L Const. art. I. § 10 ; S. C. Const, art. I. § 13 ; Tenn. Const, art. I. § 9; Tex. Const. art. I. § 10; Vt. c. 1, art. 10; Va. Const, art. I. § 10; Wis. Const, art. L §7. 2 Nixon r. State, 10 Miss. (2 Smed. & M.) 497 (1844) ; s.c. 41 Am. Dec. 601; Olive v. State, 11 Neb. 1 (1881) ; s.c. 7 N. W. Rep. 444. This right has been guaranteed from the earliest time. It was se- cured first by the Mngna Charta and the Petition of Rights, subsequently enforced by statutes allowing a certain time within which the trial should be had, or on default of this^ in the ab- sence of any sufficient legal reason, granting a discharge from custody. In the American states this same right is guaranteed, as we have seen above, in most of the state constitutions, and by the sixth amendment to the Fed- eral Constitution, reading as follows : " In all criminal prosecutions the ac- cused sliall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shnll have been committed, which district shall have been previ- 365 366 HOMICIDE. [chap. XVII. finding of the indictment as sliall afford the prosecution time and opi^ortunity, by the fair and honest exercise of reasonable diligence, to prepare for trial, regard always being had to the terms of court. Should the trial be delayed or post^Doned beyond such period, when there is a term of court, at which the trial might be had, by reason of the neglect or laches of the prosecution in preparing for trial, such delay is a denial to the defendant of his right to a speedy trial ; and in such case a party confined, upon application by habeas corpus^ is entitled to a discharge from custody .^ The right to a " speedy trial " means a trial according to fixed rules, regulations, and proceedings, free from veiiatious delays manufactured by the ministers of the law.^ Sec. 329. I>iscliarg-e on failure to try. — The right to a speedy trial may be enforced by a motion to discharge, motion to dismiss, or a writ of habeas corpus^ in those cases where the delay is without good and sufficient cause, and is oppressive ; but such relief will not be granted in those cases where the delay originates with the accused himself, or arises from necessary regulations of procedure, or to give the prose- cution time to prepare for trial. '^ Thus it has been held that ously ascertained by law, and to be 213; Barron v. Baltimore, 32 U. S. informed of the nature and cause of (7 Pet.) 243 (1833) ; bk. 8 L. ed. 672. the accusation; to be confronted with To the same effect are the following tlie witnesses against him; to have state decisions : Campbell r. State, 11 compulsory process for obtaining wit- Ga. 353 (1852) ; Guillotte v. New nesses in his favor, and to liave the Orleans, 12 La. An. 432 (1857) ; Jack- assistance of counsel for his defence." son r. Wood, 2 Cow. (N. Y.) 819 It has been uniformly held by the (1824) ; Murphy v. People, 2 Cow, supreme court of the United States (N. Y.) 815 (1826) ; In matter of that the prohibition contained in tiiis Smith, 10 Wend. (N. Y.) 449 (1833). and other amendments to the consti- ^ United States c. Fox, 3 Mont. Tr. tution are exclusively restrictive of 512 (1880) ; s.c. 2 Cr. L. Mag. 329. federal powers and does not apply to - Stewart r. State, 13 Ark. 720 acts of the legislatures of the various (1853) ; Nixon v. State, 10 Miss. (2 states. See Walker v. Sanvinet, 92 Smed. & M.) 497 (1844) ; s.c. 41 Am. U. S. (2 Otto) 90 (1875) ; bk. 23 L. Dec. 601. ed. 678; Twitchell v. Commonwoaltli, » gee People v. Shufelt, 61 Mich. 74 U. S. (7 Wall.) 321 (1868) ; bk. 19 237 (1886) ; s.c. 28 N. W. Rep. 79 ; L. ed. 223 ; Withers v. Buckley, 61 State i'. Thompson, 32 Minn. 144 U.S. (20 How.) 90 (1857); bk. 15 (1884); s.c. 19 N. W. Rep. 730; L. ed. 816 ; Smith v. State, 59 U. S. Nixcm v. State, 10 Miss. (2 Smed. & (18 How.) 76 (1855) ; bk. 15 L. ed. M.) 497 (1844) ; s.c. 41 Am. Dec. 269 ; Fox v. State of Ohio, 46 U. S. 601 ; United States v. Fox, 3 Mont. (5 How.) 410 (1847) ; bk. 12 L. ed, Tr. 512 (1880) ; s.c. 2 Cr. L. Mag. SEC. 330.] THE TRIAL. 3GT delay in trying a capital case for two terms of court after the finding- of the indictment and the commitment of- the ac- cused, is ground for his discharge, even though the postpone- ment of the trial was unavoidal)le.^ But it seems that the motion to discharge will be denied wlien the state is ready for trial, and there is not time in which to try the cause.^ However in Green's Case,^ it is said that a person is entitled to a discharge where the cause has been continued over five terms, one on the application of the defendant, and four times because of a lack of time to try it.* But to entitle a defendant to a discharge because of such delay in bringing the cause to trial he must demand a trial.^ Where a due demand for trial is made and a jury is impanelled and quali- fied to try the defendant, both at the term at which the de- mand is made, and the term at which liis discharge is moved, and he is not tried, he is entitled to an absolute discharge for want of prosecution,'^ and such discharge has the same effect as a trial and acquittal.^ Sec. 330. Fixing time of trial — Rights of defendant. — The right of a speedy trial is not a trial fixed with undue haste, and against liis objection, and which works to his preju- dice. Especially is this so where the punishment for the offence charged may involve the life of the accused. He is always entitled to a reasonable length of time in which to prepare his defence, after his formal accusation by the grand jury.^ He is entitled to have compulsory process for the 329; Commonwealth v. Propliot, 1 ^ Coiieh r. State, 28 Ga. 64 (1859) ; Brown (Pa.) 135 (1810); Green v. Gallagher r. People, 88 111. 335 (1878). Commonwealth, 1 Kob. (Va.) 731 The demand may be by words, or acts, (1842). or both. See People v. Frost, 5 Park. 1 State V. Phil, 1 Stew. (Ala.) 31 Cr. Cas. (N. Y.) 52 (1838). (1827) ; People v. Giesea, 61 Cal. 53 ^ Dacey v. State, 15 Ga. 286 (1854) ; (1882) ; Brooks v. People, 88 111. 327 Kerese v. State, 10 Ga. 95 (1851) ; (1878) ; State v. Thompson, 32 Minn. Commonwealth v. Prophet, 1 Browne 144 (1884) ; s.c. 19 N. W. Pep. 730; (Pa.) 135 (1810). State V. Huting, 21 Mo. 464 (1855). " Ex parte McGehan, 22 Ohio St. 2 Robinson v. State, 12 Mo. 592 442 (1872) ; Kerese r. State, 10 Ga. (1849) ; Erwin v. State, 29 Ohio St. 95 (1851). 186 (1876) ; Ex parte McGehan, 22 » State v. Boyd, 37 La. An. 781 Ohio St. 442 (1872). (1885) ; People v. Fnller, 2 Park. Cr. 3 1 Rob. (Va.) 731 (1842). Cas. (N. Y.) 16 (1823). * But see State v. Patterson, 1 A defendant in a capital case, who McCord (S. C) 177 (1821). is guilty of no laches is entitled to a 368 HOMICIDE. [chap. XVII. attendance of witnesses to testify in his favor, and, conse- quently, time reasonably sufficient for obtaining them ; ^ but this means witnesses to give testimony in his defence to the merits, and not necessarily witnesses to join with him in an affidavit for the purpose of obtaining a change of venue.^ But where a continuance or adjournment is asked for on the ground of the absence of necessary witnesses, the court may usually properly refuse the request, if the prosecution admits the truth of the facts to which the absent Avitnesses are expected to testify, as set forth in the motion.'^ In the case of People v. Wilson * an application for delay in a trial for murder, grounded on an affidavit of the absence of mate- rial witnesses, it appeared, on the part of the government, and was not disputed by the accused, that no living person save the prisoner was present at the alleged murder, nor was there claim of an allhi. The court required the facts expected to be proved by the absent witnesses to be set forth. It appeared that the witnesses were expected to testify to the defendant's good character before the alleged murder. The government admitted this and the motion was denied. Sec. 331. Postponement of trial. — A postponement is sometimes properly granted for the purpose of obtaining a witness to contradict a witness whose testimony is unex- pected, and causes surprise. In Hodde v. State,^ wdiich was the trial of an indictment for murder, the state produced material testimony of a new witness who had not been called at two previous judicial investigations of the case, and re- fused to grant the defendant a postponement until a contra- dieting witness, twelve miles away, could arrive ; and this was held to be ground for a new trial. reasonable time to prepare his de- \Y. Rep. 275; Bailey ?■. State, 26 Tex. fence. Three hours is not such time. App. 706 (1887) ; s.c. 9 S. W. Hep. State V. Boyd, ?,7 La. An. 781 (1885). 270; Wall v. State, 18 Tex. App. 682 1 Wall V. State, 18 Tex. App. 682. (1885) ; Miller v. State, 18 Tex. App. 2 See Stapleton r. Commonwealth 232 (1885) : Hodde v. State, 8 Tex. (Ky.) 3 S. W. Rep. 793 (1887) ; App. 382 (1880). State y. Lewis, 9 Mo. App. .321 (1881); » i:.eople v. Wilson, 3 Park. Or. Skates v. State, 64 Miss. 644 (1887) ; Cas. (N. Y.) 199 (1856). People V. Wilson, 3 Park. Cr. Cas. * 3 Park. Cr. Cas. (N. Y.) 199 (N. Y.) 199 (1856); Boyctt v. State, (1856). 26 Tex. App. 689 (1886) ; s.c. 9 S. ^ 8 Tex. App. 382 (1880). SEC. 331.] THE TRIAL,. 369 In considering the motion, if the postponement or continu- ance is asked for the purpose of obtaining absent witnesses, the court should consider the materiality of their expected testimony as it is stated in the motion, and its probable truth : ^ and if such testimony would be plainly immaterial or inad- missible, or would lack weight sufficient to benefit defendant, the motion may be refused.^ Thus it has been said that a conviction for murder will not be reversed for refusing a con- tinuance to procure witnesses to prove that another person, shown not to have been present at the killing, and confessed being guilty thereof, there being direct as well as strong cir- cumstantial evidence that the defendant, and not the other per- son, committed the crime, as such confession, in view of these facts, would have been inadmissible.^ In Boyett v. State * it is said that the fact that the defendant could prove, by wit- nesses, absent without fault, the time of night at which the homicide for which he was indicted occurred ; that he was seen going in the direction of home shortly previous thereto, and not seen by them again that night ; two men, of whom the defendant was not one, inquired for the deceased the day before he was killed, threatened him, and went in the direc- tion of the town where the crime was committed, is ground neither for a continuance nor a new trial, when the inculpa- tory evidence is so strong that the evidence would have probably made no change in the verdict. And where a motion for a continuance of the trial of an indictment for murder was supported by an affidavit that the defendant could prove by an absent witness that the deceased had threatened to take the defendant's life, and the threats had been communi- cated to him, it was held that the proof showing that the defendant had no fear of the deceased, and that the defend- ant's effort was to provoke him in order that he might shoot him, the overruling of the motion would not be disturbed.^ 1 Miller v. State, 18 Tex. App. 232 ^ Bailey v. State, 26 Tex. App. 706 (1885). (1887) ; s.c. 9 S. W. Rep. 270. - Stapleton v. Commonwealth, ••2(5 Tex. App. 689 (1886); s.c. (Ky.) 3 S. W. Rep. 793 (1887); 9 S. W. Rep. 275. Bailey v. State, 26 Tex. App. 706 ^ Stapleton v. Commonwealth, (1887) ; s.c. 9 S. W. Rep. 270; Boyett (Ky.) 3 S. W. Rep. 793 (1887). r. State, 26 Tex. App. 689 (1886); s.c. 9 S. W. Rep. 275. 24 370 ho:micide. [chap. xvri. Sec. 332. Continuance to secure witness. — It may be good ground for a postponement or continuance, as the case may be, that the necessary witnesses for the defence have not been summoned, and the omission is not the fault of de- fendant. Thus it has been said that the judgment will be reversed and a new trial granted in a capital case, where it appears that the defendant confided in his attorney to summon the necessary witnesses for his defence, but that they were not summoned, and that the court nevertheless ordered the trial'to proceed, whereupon a conviction of murder in the first degree resulted.^ Sec. 333. Same — When refused. — There can be no benefit in granting a continuance where it is improbable that the absent witnesses will ever be present. In Skates v. State ^ a continuance of a trial for homicide was asked for on the ground of the absence from the state of the physician who attended the deceased, and by whom it was expected to prove that the deceased died, not from the effects of the wound in- flicted by the defendant, but from pneumonia. Immediately after the killing, more than six years before the trial, the de- fendant fled and remained away until a short time before the trial ; and the physician in the meantime removed from the state, and had never returned, nor indicated any intention of returning. The court held that the continuance was properly refused, there being no reasonable expectation that the wit- ness would ever attend in court. Sec. 334. Continuance to secure counsel. — A postpone- ment because the defendant has not been able to obtain coun- sel, or has obtained counsel so recently that there has not been sufficient time in which to prepare the defence, is largely within the discretion of the trial court. Thus where the accused on arraignment informed the judge that he had re- tained counsel, but afterwards asked a continuance because liis counsel had abandoned liis case, and counsel was then assigned, who defended him through the trial and on appeal, it was held that the appellate court could not interfere with 1 State V. Lewis, 9 Mo. App. 321 2(54 Miss. G44 (1887); s.c 1 So. (1881). Rep. 843. SEC. 334.] THE TRIAL. 371 the discretion of the judge in refusing a continuance.^ But in the case of State v. Brooks,^ which was a prosecution for homicide charged to have been committed only nine days previously, the defendant asked a continuance on the ground that it was only on the preceding day he had been able to secure counsel, who had not had a reasonable time to prepare the defence, it was held that a refusal to grant the continu- ance was error, for which a conviction would be set aside. The law securing assistance to jiersons accused of homicide or other felony does not extend to them a barren right, for of what avail would the privilege of counsel be if, on the spur of the moment, without an ojjportunity of studying the case, he should be compelled to enter into the investigation of the case? The counsel must be allowed a reasonable time in which to prepare for trial.^ In those cases where the defendant has had sufficient time to prepare his defence, it is not generally error to put him upon his trial at a special or adjourned term, properly ordered and recognized ; and he cannot be heard to object that such term was not ordered on his petition."* Thus it has been said, by the supreme court of Arkansas, that where the record shows that a capital trial was had at an extra term, called and held conformably to law, and on the day specified in the order calling it, it is of no consequence that the order fix- ing the day for trial was made on the day before the final adjournment of the regular term, while the order for the adjourned term was not made until the next day ; nor is it material that an order was not made at the extra term setting a day for the trial.^ 1 State V. Johnson, 36 La. An. 852 Simpson, 38 La. An. 24 (1886) ; State (1884). i-. Ferris, 16 La. An. 424 (1862). - 39 La. An. 239 (1887) ; s.c. 1 So. * Collier v. State, 20 Ark. 36 (1859). Kep. 421. See Martin v. State, 77 Ala. 1 (1884). 3 State V. Brooks, 39 La. An. 239 5 Martin v. State, 77 Ala. 1 (1884). (1887); s.c. 1 So. Rep. 421; State v. CHAPTER XVIII. JOINT DEFENDANTS. Seo. 335. Separate trial. Sec. 336. Same — Discretion of trial judge. Sec. 337. When demanded. Sec. 338. Determining order of trial. Sec. 339. Waiver of separate trial. Sec. 340. When put on trial. Sec. 335. Separate trial. — In many jurisdictions where two or more persons are jointly indicted for a homicide they are entitled to separate defences as a matter of right,^ even where the object of the severance is to use the co-defendant first tried as a witness, in case he is acquitted.^ In other jurisdictions the granting of a severance is a matter resting in the sound discretion of the trial court.^ In Commonwealth V. Hughes ^ it is said that the prosecuting attorney may elect to try the defendants separately. Sec. 336. Same — Discretion of trial judg-e. — The trial judge, in the absence of statutory regulation of the subject,^ 1 People V. Alviso, 5-5 Cal. 230 (12 Wlieat.) 480 (1827) ; bk. 6 L. ed. (1880); Studstill v. State, 7 Ga. 2 700; United States v. Gibert, 2 Sunin. (1840); Greer v. State, 54 Miss. 378 C. C. 19 (1834). See Keed v. State, (1877) ; State v. Knight, 59 Tcnn. 11 Tex. App. 509 (1882) ; s.c. 40 Am. 418 (1874); Willey v. State, 22 Tex. Kep. 795; Anderson v. State, 8 Tex. App. 408 (1886); s.c. 3 S. W. Kep. App. 542 (1880). 570; Allison v. State, 14 Tex. App. ^ Stewart v. State, 58 Ga. 577 402(1884); Myers i;. State, 7 Tex. App. (1877); Douglass v. State, 72 Ind. 640(1880); Ruckery.State, 7 Tex. App. 385 (1880); State v. Doolittle, 58 549(1880); United States r. Sharp, 1 N. H. 92 (1877); United States r. Pet. C. C. 118 (1815); Reg. v. Mc- Marciiant, 25 U. S. (12 Wiieat.) 480 Canohy, 5 Rev. Leg. L. C. 746 (1874). (1827) ; bk. 6 L. ed. 700; United States ■- Statu V. Conley, .39 Me. 78 (1854). r. Wilson, Baldw. C. C. 78 (1830) ; Referred to State v. Soper, 16 Me. 293 United States ;•. Davidson, 4 Cr. C. C. (18.39) ; s.c. 33 Am. Dec. 665; People 576 (1835) ; United States v. Gibert, 2 V. Stockham, 1 Park. Cr. Cas. (N. Y.) vSumn. C. C. 20 (18-34) ; United States 424 (1853) ; State v. McLendon, 5 v. Kelly, 4 Wash. C. C. 528 (1825). Strobh. (S. C.) L. 85 (1850); Conn. * n pi,iia. (l>a.) 430 (1876). r. State, 11 Tex. App. 390 (1882); ^ Soo Lawrence v. State, 10 Ind. United States v. Marchant, 25 U. S. 453 (1858). 372 SEC. 339.] JOI^'T DEFENDANTS. 373 has the discretion to grant ^ or refuse a severance in the trial of defendants jointly indicted.^ Sec. 337. AVhen demanded. — A demand for the separate trial of joint defendants should be made to the court before the formation of the jury is begun ; ^ but the trial court may, in the exercise of a sound discretion, grant or refuse a sever- ance at any time before the jury is sworn.* After the jury has been sworn and evidence taken it is too late for co-defend- ants to elect to be tried separately.^ Sec. 338. Determining oi-der of trial. — Where co-defend- ants are entitled as a matter of right to a severance in their trial, they cannot determine the order in which their trials shall be had ; ^ this matter rests in the sound discretion of the ministerial officer prosecuting,' subject to the direction of the trial court ; ^ and the failure of the court to interfere Avith that discretion is not ground for exception ; ^ hence the principal in the second degree may be tried first.^*^ Sec. 339. Waiver of separate trial. — Joint defendants may waive a separate trial, and where they have done so, it is within the discretion of the court to grant a subsequent application for a separate trial.^i 1 Commonwealth i\ James, 00 Mass. ^ State v. McLane, 15 Nev. 345 438 (1868) ; Commonwealth v. Hughes, (188U). 11 Phila. (Pa.) 430 (187G) ; State v. * People v. Alviso, 55 Cal. 230 Yancey, 3 Brev. (S. C.) 306 (1813) ; (1880). 8.C. 1 Tread. (S. C.) 241. » Trowbridge v. State, 74 Ga. 431 2 Thompson v. State, 25 Ala. 41 (1885). (1854) ; People v. Alviso, 55 Cal. 230 '^ Allison r. State, 14 Tex. App. 402 (1880) ; Maton v. People, 15 111. 530 (1884). (1854) ; Commonwealth v. Thompson, ' See Patterson v. People, 46 Barb- 108 Mass. 461 (1871) ; Commonwealth (N. Y.) 625 (1866) ; Shay v. Common- V. Robinson, 67 Mass. (1 Gray) 555 wealth, 36 Pa. St. 305 (1860) ; Keg. r. (1854); AVall v. State, 51 Miss. .306 Bennett, 10 Cox C. C. 331 (1866); (1875) ; State v. Doolittle, 58 N. H. Reg. r. Bond, 10 Cox C. C. 331 (1866). 92 (1877) ; People r. Howell, 4 Johns ^ People v. Mclntyre, 1 Park. Cr. (N. Y.) 296 (1800) ; State v. McGraw, Cas. (N. Y.) 371 (1852) ; aff. svb. nom. 13 Rich. (S. C.) L. 316 (1866) ; State Mclntyre v. People, 9 N. Y. 38 (1853). V. Wise, 7 Rich. (S. C.) L. 412 (1854) ; » Studstill v. State, 7 Ga. 2 ( 1849) ; State V. Meaker, 54 Vt. 112 (1881) ; Patterson v. People, 46 Barb. (N. Y.) .Tones v. Commonwealth, 31 Gratt. 625 (1866). See Jones v. State, 1 Ga. (Va.) 830 (1878); Commonwealth i'. 610 (1846). Lewis, 25 Gratt. (Va.) 938 (1874); i-^ Boyd r. State, 17 Ga. 194 (1855). UnitedStates!'. Marchant,25 U.S. (12 "People v. Alviso, 55 Cal. 230 Wheat.) 480 (1827) ; bk. 6 L. ed. 700. (1880). 374 HOMICIDE. [chap. XVIII. Sec. 340. When put ou trial. — It is not necessary, how- ever, that all the proceedings as to one of the defendants shall be concluded before the other is put upon his trial. Thus where two were jointly indicted as principals in the second degree for murder, and the case being called as to one, his counsel stated that there was a plea of autrefois acquit to be disposed of, which was done, and verdict rendered for the state, it was held, that the other principal might be put on trial, without first concluding the proceedings against his co-defendant.i 1 Studstill V. State, 7 Ga. 2 (1849). CHAPTER XIX. THE TRIAL — PRESENCE OF THE DEFENDANT. Sec. 341. Right to be present. Sec. 342. Same — Forfeiture of right. Sec. 343. Same — Waiver of right. Sec. 344. Same — Temporary absence. Sec. 345. Presence during delivery of testimony. Sec. 346. Attending on inspection. Sec. 347. Presence during instruction to jury. Sec. 348. Presence when verdict received. Sec. 349. Present on motion for new trial and arrest of judgment. Sec. 350. Presence presumed. Sec. 351. Presence of counsel. Sec. 341. Right to be present. — Upon the trial of an indictment for a homicide, as in prosecutions for other felo- nies, it is imperative that the defendant be present in court when any material step is taken in the progress of the trial, or of anything pertaining thereto.^ This right is without 1 See Sylvester v. State, 71 Ala. 31 Mo. 147 (1860) ; State v. Cross, 17 (1881); Slocovitch v. State, 46 27 Mo. 332 (1858) ; Dodge r. People, Ala. 227 (1871) ; People v. Sing Lum, 4 Neb. 220 (1876) ; Territory v. Yar- 61 Cal. 538 (1882); People v. Lee berry, 2 N. Mex. 391 (1883); Maurer Fat, 54 Cal. 527 (1880) ; People r. v. People, 43 N. Y. 5 (1870) ; State v. Harrington, 42 Cal. 168 (1871) ; s.c. Alnian, 64 N. C. 364 (1870) ; Fight v. 10 Am. Rep. 296 ; Territory v. Gay, State, 7 Ohio, 182 (1835) ; s.c. 28 Am. 2 Dak. 125 (1879) ; s.c. 2 N. W. Rep. Dec. 626; Crusen v. State, 10 Ohio 477; Gladden v. State, 12 Fla. 562 St. 258 (1859); State v. Carfwright, (1869); AVrt« V. Slate, .55 Ga. 521 10 Oreg. 193 (1881); Jewell v. Com- (1875); s.c. 21 Am. Rep. 281; Ep}>s monwealth, 22 Pa. St. 94 (1853); V. State, 102 Ind. 5-39 (1885) ; s.c. 5 Prine v. Commonwealth, 18 Pa. St. Am. Cr. Rep. 517; 1 N. E. Rep. 491; 103 (1851); State v. Blackwelder, State f.Decklotts, 19 Iowa, 447 (1865); Phill. (N. C.) 38 (1866); State v. State V. Berlin, 24 La. An. 46 (1872) ; David, 14 S. C. 428 (1880) ; Clark v. State V. Richards, 21 Minn. 47 (1874); State, 4 Humph. (Tenn.) 254 (184.3) ; Simpson v. State, 56 Miss. 297 (1879); Brown v. State, 38 Tex. 482 (1873) ; Rolls 1-. State, 52 Miss. 391 (1876) ; Jackson v. Commonwealth, 19 Gratt. Scaggs V. State, 16 Miss. (8 Smed. & (Va.) 664 (1870) ; Shapoonmash v. M.) 722 (1847); State v. Dooly, 64 United States, 1 Wash. Tr. 188 (1862); Mo. 146 (1876) ; State v. Allen, 64 Leschi r. Territory, 1 Wash. Tr. 23 Mo. 67 (1876) ; State v. Schoenwald, (1857) ; State i-. Greer, 22 W. Va. 375 376 HOMICIDE. [chap. XIX. exception and without limit except in those matters regard- ing which the trial court has a discretion. This privilege to be present in person and defend by self or counsel is often secured by constitutional provision and one which the courts cannot disregard, but are bound by the most solemn obliga- tion to support and defend.^ The record must affirmatively show that the defendant Avas present in court during the whole time of the trial, and when the verdict was rendered and the sentence pronounced,^ or the judgment of conviction will be reversed.^ But the fact of the prisoner's presence need not be declared and repeated 800 (1883); Younger v. State, 2 W. Va. 579 (1868) ; Hill v. State, 17 Wis. 675 (1864) ; 2 Hale, 300. Compare People V. Bealoba, 17 Cal. 389 (1861). '^ Ex parte Bryan, 44 Ala. 402 (1870) ; Holton v. State, 2 Fla. 501 (1849). 2 Sylvester v. State, 71 Ala. 17 (1881) ; Ex parte Bryan, 44 Ala. 402 (1870) ; Graham v. State, 40 Ala. 659 (1867); Eliza v. State, 39 Ala. 693 (1866) ; Sweetlen v. State, 19 Ark. 205 (1857) ; Cole v. State, 10 Ark. 318 (1850) ; Si^eed v. State, 5 Ark. 431 (1843) ; s.c. 41 Am. Dec. 102; People v.Kohler, 5 Cal. 72 (1855); Gladden V. State, 12 Fla. 577 (1869) ; Holton V. State, 2 Fla. 476 (1849) ; Steele v. Commonwealth, 3 Dana (Ky.) 84 (1835) ; State v. Smith, 31 La. An. 406 (1879) ; Simpson v. State, 56 Miss. 297 (1879) ; Rolls v. State, 52 Miss. 391 (1876) ; Long v. State, 52 Miss. 23 (1876) ; State i'. Dooly, 64 Mo. 146 (1876) ; State v. Allen, 64 Mo. 67 (1876) ; State v. Jones, 61 Mo. 233 (1875) ; State v. Barnes, 59 Mo. 154 (1875) ; State v. Ott, 49 Mo. 326 (1872) ; State v. Schoenwald, 31 Mo. 147 (1860) ; State v. Cross, 27 Mo. 332 (1858) ; State v. Buckner, 25 Mo. 167 (1857) ; State (•. Matthews, 20 Mo. 55 (1854) ; Maurer v. People, 43 N. Y. 1 (1870) ; People v. Charles, 1 Edm. Sel. Cas. (N. Y.) 264 (1846); State V. Alman, 64 N. C. 364 (1870) ; State V. Langford, Busb. (N. C.) L. 436 (1853); State i-. Cartwright, 10 Ureg. 193 (1881) ; Dougherty v. Com- monwealth, 69 Pa. St. 286 (1871) ; Prine ;'. Commonwealth, 18 Pa. St. 103 (1851); Hamilton v. Common- wealth, 16 Pa. St. 129 (1851) ; Dunn r. Commonwealth, 6 Pa. St. 384 (1847); Andrews v. State, 34 Tenn. (2 Sneed.) 550 (1855) ; Witt v. State, 5 Coldw. (Tenn.) 11 (1867) ; Lawrence v. Com- monwealth, 30 Gratt. (Va.) 845 (1878); Jackson v. Commonwealth, 19 Gratt. (Va.) 656 (1870) ; Hooker v. Com- monwealth, 13 Gratt. ( Va.) 763 (1855); Sperry v. Commonwealth, 9 Leigh (Va.) 623 (1838) ; s.c. 33 Am. Dec. 261 ; Shapoonmash v. United States, 1 Wash. Tr. 188, 219 (1862) ; Leschi r. Washington Territory, 1 Wash. Tr. 23 (1857); Younger v. State, 2 W. Va. 579 (1868) ; Hill v. State, 17 Wis. 675 (1864). Compare People v. Sing Lum, 61 Cal. 538 (1882) ; Territory r. Yarberry, 2 N. Mex. 391 (1883), where it is held that the defendant's presence will be presumed unless the record shows the contrary. See post, § 350. 3 Osborn v. State, 24 Ark. 629 (1867) ; Brown v. State, 24 Ark. 620 (1867); Gladden v. State, 12 Fla. 562 (1869); Holton v. State, 2 Fla. 500 (1849) ; Rutherford v. Common- wealth, 78 Ky. 639 (1880) ; McQuil- Icn V. State, 16 Miss. (8 Smed. & M.) 587 (1847); State v. Elkins, 63 Mo. 159 (1876) ; People v. Vail, 6 Abb. (N. Y.) N. C. 206 (1879) ; s.c. 57 How. (N. Y.) Pr. 81; Dougherty v. Commonwealth, 69 Pa. St. 286 (1871). SEC. 341.] PRESENCE OF THE DEFENDxiNT. 377 at eacli recorded step ; it being sufficient where the presence necessarily results from other matters stated, or itotherwise appears from a consideration of the whole record.^ Where the record shows the prisoner present on one day of the trial, it will not be presumed that he was present on the following day .2 In Shapoonmash v. United States ^ on a trial for murder, where the record showed that the prisoner was in court at the commencement of the trial, and that the conit adjourned from one day to the next, but nothing was said about the prisoner until after the jury rendered their verdict, when it appeared that the court "remanded the prisoner to the custody of the marshal," it was held, that it could not be presumed that the prisoner was present in court when the verdict was rendered. In the case of State v. Schoenwald* an entry of the pro- ceedings on the second day of the trial in the following form : " Now again come as well the parties aforesaid as also the the jurors," &c., was held to sufficiently show the presence of the defendant. And in Lesehi v. Territory ^ on a trial for murder, the record set forth the verdict : " We, the jury, do find the defendant L guilty as charged in the indictment, and that he suffer death ; and thereupon defendant gives notice for a motion for a new trial." The sentence then followed on the record, "and the defendant saying nothing why judg- ment should not be pronounced against him, it is considered," &c., and the court held, that it sufficiently appeared that the defendant was not only present when the verdict was ren- 1 vSwceden v. State, -19 Ark. 205 Schirmcr i'. People, 33 111. 270 (1864) ; (1857); Smith v. State, 60 Ga. 430 Rhodes v. State, 23 Ind. 24 (18(55); (1878) ; State v. Wood, 17 Iowa, 18 State v. Wood, 17 Iowa, 18 (1804) ; (1804) ; State v. Coleman, 27 La. An. Dodge v. People, 4 Neh. 220 (1876) ; 691 (1875) ; Jeffries y. Commonwealth, Holmes r. Commonwealth, 25 Pa. St. 04 Mass. (12 Allen) 145 (1800) ; 221 (1855) ; Lesehi v. Washington Grimmr. People, 14 Mich. 300 (1806); Territory, 1 Wash. Tr. 13- (1857); Barley v. State, 1 Neb. 385 (1868) ; Hill v. State, 17 Wis. 675 (1864). Stephens v. People, 19 N. Y. 549 2 Scaggs v. State, 16 Miss. (8 Smed. (1859) ; Stephens v. Peofle, 4 Park. & M.) 722 (1847) ; State v. Jones, 01 Cr. Cas. (N. Y.) 396 (1859) ; State v. Mo. 232 (1875) ; State v. Schoenwald, Craton, 6 Ired. (N. C.) L. 104 (1845) ; 31 Mo. 147 (1860) ; State v. Cross, 27 Jacobs V. Commonwealth, 5 Serg. & Mo. 332 (1858); State v. Collins, 8 R. (Pa.) 315 (1819) ; Lawrence v. Ired. (N. C.) L. 407 (1848). Commonwealth, .30 Gratt. (Va.) 845 ^ i Wash. Tr. 219 (1802). (1878). Presumptions are sometimes * 31 Mo. 147 (1800). indulged in for or against a record: ^ 1 Wash. Tr. 22 (1857). 378 HOMICIDE. [chap. XIX. dered against liim, but that he was present when the sentence was pronounced. Some of the cases hokl that the record must state that the prisoner was present when the trial began, though silent regarding his presence at some subsequent step, the presump- tion being in favor of the regularity of the proceedings and the presence of the defendant.^ Thus it has been held that on an appeal in a capital case, the record must show affirmatively that the defendant was personally present in court when the day for his trial was fixed and the order made for sum- moning a special venire/ Also that where a motion for a new trial is made by one who has been convicted of murder, the record must affirmatively show the presence of the pris- oner when his motion is overruled.^ But where from the whole record it may fairly be inferred that the defendant w\as present, the absence of a formal state- ment to that effect is not fatal to the conviction.* The absence of defendant's counsel is generally no ground for reversal, where the proceedings were regular and no prejudice to the defendant is shown. Thus absence of coun- sel when a verdict of guilty of murder was rendered, the jury being properly polled, is no ground for a new trial.*^ Sec. 342. Same — Forfeiture of right. — While it is true as a general rule that a person accused of a homicide has a constitutional right to be present during all stages of the trial, yet he may forfeit that right. Thus it has been said that his removal will be justified if he disturbs or interrupts the district attorney in a loud voice, though admonished by the court to refrain ; he may be removed from the court-room, by order of court, to an adjoining room, with liberty of access for his counsel ; and the fact that the prosecuting officer opened and closed his speech during the prisoner's absence, where he was present during the remainder of the trial, it will not be such error as to justify a reversal of the conviction.*' 1 State V. Cartwright, 10 Oroir. 190 3 Simpson v. State, 56 Miss. 297 (1881). Compare Shapoonmasli v. (1879). United States, 1 Wash. Tr. 219 * Lawrence v. Commonwealth, .30 (18(i2). Gratt. (Va.) 84r) (1878). 2 Sylvester v. State, 71 Ala. 17 » Tenn r. State, 02 Miss. 450 (1884). (1881). " United States v. Davis, 6 Blatchf. C. C. 404 (1869). SEC. 343.] PRESENCE OF THE DEFENDANT. 379 Sec. 343. Same — Waiver of right. — It has been said that in a trial for feh)ny the defendant cannot waive his right to be present during the proceedings ; ^ but there are cases holding that he may waive the right to be present at some minor steps in the proceedings by volnntarily remaining absent, or otherwise ; ^ and his appeal is properly heard in his absence.3 Thus where the accused voluntarily absents himself from the court during the trial, or if a prisoner, dur- ing the progress of his trial, absconds, he is considered to have waived his right to be present.^ The waiver mnst be the act of the accused himself, and not that of his coun- sel ; ^ and his absence must be due to his own voluntary act ; for, if he is prevented from being present by being confined in jail, proceeding with the trial in his absence will be an irreg- ularity for which a new trial will be granted.^ In one case the court say : " We conceive it to be the right of an accused person to be present during the trial of his case, and at the return of the verdict, and we think that when deprived of these privileges by being imprisoned in a jail, or in any other improper manner, the verdict returned against him should 1 Cook V. State, 60 Ala. 39 (1877) ; Waller v. State, 40 Ala. USS (1807) ; Prine v. Communwealtli, 18 Pa. St. 103 (1851) ; Commonwealth v. Sliaw, 1 Crunirine (Pa.) 498 (1859); s.c. 1 Pitts (Pa.) 498 ; Jackson v. Common- wealth, 19 Gratt. (Va.) 664 (1870). In Jackson v. Commonwealth, 19 Gratt. (Va.) 664 (1870) it is said: " No principle is supposed to be better settled, and, in all criminal trials of the grade of felony, more rigidly ad- hered to, than that in all such trials, the prisoner has a right to be present in every stage, from the arraignment to the rendition of the verdict. It is held to be a right of which he cannot be deprived, and which he cannot waive. So imperative is the rule of law that no part of the trial can pro- ceed without him ; " and in Prine ;•. Commonwealth, 18 Pa. St. 105 (1851), that " the right of a prisoner to be present at his trial is inherent and inalienable." 2 See Territory v. Gay, 2 Dak. 125 (1879) ; Epps v. State, 'l02 Ind. 539 (1885) ; s.c. 6 Am. Cr. Rep. 517 ; 1 N. E. Rep. 491 ; State v. Wamire, 10 Ind. 357 (1861) ; McCorkle r. State, 14 Ind. 39 (1859) ; State v. Reckards. 21 Minn. 47 (1874) ; Wil- son V. State, 2 Ohio St. 319 (1853) ; Hill V. State, 17 Wis. 675 (1864). 3 State i: David, 14 S. C.428 (1880). * McCorkle v. State, 14 Ind. 39 (1859); Price v. State, 36 Miss. 531 (1858) ; Lynch v. Commonwealth, 88 Pa. St. 189 (1879) ; s.c. 32 Am. Rep. 445; United States r. Santos, 5Blatchf. C. C. 104 (1862). 5 People V. Perkins, 1 Wend. (N. Y.) 91 (1828) ; Rose v. State, 20 Ohio, 31 (1851) ; Rex v. Streek, 2 Car. & P. 413 (1826). e Wheeler v. State, 14 Ind. 573 (1860) ; Jones v. State, 26 Ohio St. 208 (1875) ; Rose v. State, 20 Ohio, 31 (1851). 380 HOMICIDE. [chap. XIX. not be followed by judgment or sentence of the court, but a new trial should be ordered if requested." The presence of the defendant at the hearing of his coun- sel on an application for a new trial, or in arrest of judgment seems not to be necessary,^ or on the hearing of a motion to quash an indictment for murder,^ unless he claims the con- stitutional right to be heard in person,^ and though highly proper, it is not necessary that the prisoner, charged with a capital offence, should be present in court at any time between the verdict and sentence.* A contrary rule, however, pre- vails in some states.^ Thus in Pennsylvania it has been held that the right to be present in felony cases cannot be waived, either by the prisoner or his counsel, by consent or otherwise.^ The same is true where the jury return into the court- room for further instructions.'^ Sec. 344. Same — Temporary absence. — It has been said that temporary absence of the accused from the court- room during a portion of the trial, when voluntary, will not vitiate the proceedings in a homicide case.^ And in any event such an objection comes too late after verdict, or when made for the first time on a motion for a new trial.^ Temporary absence from the court-room when the prosecuting officer commenced his closing address to the jury, will not be cause for reversal of a conviction, in the absence of a showing that any substantial portion of the agreement was made before 1 People V. Ormsby, 48 Mich. 494 ■* Jewell v. Commonwealth, 22 Pa. (1882) ; s.c. 12 N. W. Rep. 671. St. 94 (1853). In the case of State v. Decklotts, & See Rolls v. State, 52 Miss. 391 19 Iowa, 447 (1865), a prisoner ob- (1876) ; Prine r. Commonwealth, 18 jected to sentence in a murder cause Pa. St. 103 (1851) ; Dunn v. Common- on the ground that he was not in wealth, 6 Pa. St. 384 (1847) ; Shipp r. court when a motion for a new trial State, 11 Tex. App. 46 (1882). was made and determined. Tlie court ** Prine v. Commonwealth, 18 Pa. offered to hear a re-argument of the St. 103 (1851) ; Dunn v. Common- motion, which was declined by the wealth, 6 Pa. St. 384 (1847). prisoner, and it was held that there "^ Sliipp v. State, 11 Tex. App. 46 was no error to his injury in over- (1882). See ;)os^, § 347. ruling the objection. ^ McCorkle v. State, 14 Ind. 89 2Epps('. State, 102 Ind. 539 (1885); (1859); Hill v. State, 17 Wis. 675 s.c. 5 Am. Cr. Rep. 517 ; 1 N. E. Rep. (1864) ; s.c. 86 Am. Dec. 736. 491. 3 Tuttle V. State, 6 Tex. App. 556 3 State V. Jefcoat, 20 S. C. 383 (1879). (1883). SEC. 347.] PEESEXCE OF THE DEFENDANT. 381 the accused's return, or that the defendant was prejudiced thereby.^ Sec. 345. Presence during delivery of testimony. — In the trial of homicide cases as well as all other felonies, the defendant should be present during the delivery of the testi- mony against liim.^ But in some jurisdictions it is held that the prisoner may waive his right to be present during the delivery of the testimony against him, and that if he volun- tarily absents himself he will be held to have waived such right.^ Sec. 346. Attending on inspection. — Where during the progress of a trial for any of the various degrees of homicide, on application the court grants an inspection of the premises where the homicide is alleged to have been committed, the accused must be permitted to attend such inspection ; be- cause to allow such an examination to be made out of the presence and in the absence of the accused would be a viola- tion of his constitutional rights, and ground for reversal.* Sec. 347. Presence during instruction to jury. — In all homicide cases, as well as all other felonies, the accused has a right to be present while the judge is charging the jury in the case,^ gi'^'ing" them farther instructions,^ or informing them as to the evidence on certain points,"" or the reading to them of the evidence as taken down by the court.^ He also has the right to have his counsel present on such occasions.^ 1 State V. Grate, 68 Mo. 22 (1878). ^ See Martin v. State, 51 Ga. 567 2Kolls V. State, 52 Miss. 391 (1874) ; People r. Trim, 37 Cal. 274 (1876) ; Jackson v. Comnionwealtli, (1809). Instructions cannot be sent 19 Gratt. (Va.) 664 (1870). to jury in absence of accused. Holton 3 McCorkle v. State, 14 In.l. 39 v. State, 2 Fla. 470 (1849). Nor a (1859). copy of the statute calling attention * State V. Bertin, 24 La. An. 46 to the sections relating to homicide. (1872). See Benton f. State, .30 Ark. Gandolfo v. State, 11 Ohio St. 114 328 (1875) ; State v. Sanders, 68 Mo. (1860). 202 (1878); s.c. 30 Am. Rep. 782; ^ Maurer v. People, 43 N. Y. 1 Carroll v. State, 5 Neb. 31 (1876); (1870). Eastwood r. People, 3 Park. Cr. Cas. » Wade v. State, 12 Ga. 25 (1852). (N. Y.) 25 (1855). Compare StAte v. » People v. Trim, 37 Cal. 274 Adams, 20 Kan. 311 (1878) ; s.c. 7 (1809) ; Martin v. State, 51 Ga. 567 Cent. L. J. 117. (1874). 5 State V. Blackwelder, 1 Phil. (N. C.) 38 (1866). 882 HOMICIDE. [chap. XIX. But where the jury are unable to agree on a verdict, it is not essential that the prisoner be present when they come in and announce the fact to the court, and are again sent out to their room to try and agree upon a verdict.^ Sec. 348. Presence when verdict received. — The defend- ant must be present in all homicide cases when the verdict is received.^ The reason for this is first the accused's right to see that the verdict is sanctioned by all the jurors ; and sec- ond, that the accused if convicted, may be under the power of the court and subject to its judgment.^ Where a verdict has been rendered in the absence of the defendant the defect will not be cured by re-assembling the jury after discharge, that they may assent to and return the verdict in the ac- cused's j)resence.* But in those cases where the jury have dispersed with the prisoner's consent, leaving the verdict with the foreman, to be returned by him into court, it is thought not to be indispensable that the prisoner should be pres- ent when the act of return takes place in pursuance of the contract ; and that though he be confined in jail at the time, the verdict will not on that account be illegal.^ It has been said that a momentary absence from the court-room when the verdict in a case of felony is rendered and recorded by the I Lawrence v. Commonwealth, 30 32 Am. Eep. 445 ; Dunn ?•. Common- Gratt. (Va.) 852 (1878). wealth, 6 Pa. St. 384 (1847) ; Andrews - See Cole u. State, 10 Ark. 318 v. State, 34 Tenn. 550 (1855); Clark (1850); Sneed v. .SYa^e, 5 Ark. 431 ;;. State, 23 Tenn. (4 Humph.) 254 (1843) ; s.c. 41 Am. Dec. 102; People (1843); Jackson v. Commonwealth, r. Beauchamp, 49 Cal. 41 (1874); 19 Gratt. (Va.) 064 (1870). Nolan V. Slate, 55 Ga. 521 (1875); 3 Stubbs v. State, 49 Miss. 722 s.c. 21 Am. Rep. 281; Nomaque v. (1874). People, 1 111. (1 Breese) 109 (1825) ; * Cook v. State, 60 Ala. 39 (1877) ; s.c. 12 Am. Dec. 157; HoUiday v. State v. Wilsov, 50 Ind. 487 (1875); People, 9 111. (4 Gilm.) Ill (1847); s.c. 19 Am. Rep. 719. See Sneed v. State y. Outs, 30 Lii. An. 1155 (1878) ; State, 5 Ark. 431 (1843); State v. State I'. Ford, 30 La. An. 311 (1878) ; Ilurlbut, 1 Root (Conn.) 90 (1784) ; Rolls V. State, 52 Miss. 391 (1876); Price v. State, 36 Miss. 531 (1858); State V. Braunschweig, 36 Mo. 397 s.c. 2 Morris St. Cas. (Miss.) 1168; (1865) ; State v. Cross, 27 Mo. 332 State v. Braunschweig, 36 Mo. 397 (1858) ; State v. Buckner, 25 Mo. 167 (1865) ; Dougherty v. Commonwealth, (1857); People v. Perkins, 1 Wend. 69 Pa. St. 286 (1871); Dunn ;;. Com- (N. Y.) 91 (1828) ; Rose v. State. 20 monwealth, 6 Pa. St. 384 (1847). Ohio, 31 (1851); State i-. Spores, 4 5 Smith f. State, 59 Ga. 513 (1877) ; Oreg. 198 (1871) ; Lynch v. Common- s.c. 27 Am. Rep. 393. wealth, 88 Pa. St. 189 (1879); s.c. r SEC. 349.] PKESENCE OF THE DEFENDANT. 383 clerk win not invalidate the verdict, if the prisoner has the opportunity of polling the jury.^ Some cases hold that the accused may waive his right to be present at the time when the verdict is rendered, and that where he is tempojaril}^ absent at such time, in the a])sence of evidence to the contrary, it will be presumed that such absence was voluntary and a waiver of his right to be pres- ent.2 If a defendant may waive his right to be present, he must do so in person, his counsel cannot do so for him ; ^ and the failure of counsel to object to the rendition of the verdict in the defendant's absence will not constitute a waiver of the defendant's right to be present.* It is thought, however, that where the accused is out on bail, that it will not be reversible error to receive the ver- dict in his voluntary jibsence.^ Thus where the defendant absconds or escapes pending the trial, it is doubtless legal to proceed with the trial and receive a verdict in his absence.*^ But in Tennessee a different doctrine prevails, for it is there held that the absence of the prisoner, even when due to his having made his escape, deprives the court of jurisdiction to proceed with the trial, to receive the verdict, or to pronounce final judgment.'' Sec. 349. Present on motion for new trial and arrest of jndg-ment. — It has been said that upon the liearing of a motion for a new trial, the presence of the defendant is not a matter of right, and that his absence will not invalidate the proceedings or a sentence subsequently passed upon him ; ^ but the weight of authority is to the effect that he must be 1 People r. Miller, .33 Cal. 99 (1867). « State v. Wamire, 16 Ind. .357 2 Hill V. State, 17 Wis. 675 (1864). (1861; ; Price v. State, 36 Miss. 531 3 Priiie V. Commonwealth, 18 Pa. (1858) ; Fight v. State, 7 Ohio, 181 St. 103 (1851) ; Andrews v. State, .34 (1835) ; s.c. 28 Am. Dec. 626. Tenn. (2 Sneed.) 550 (1855) ; .Tackson ^ Andrews v. State, 34 Tenn. (2 V. Commonwealth, 19 Gratt. (Va.) Sneed.) 550 (1855) ; Witt v. State, 5 656 (1870). Coldw. (Tenn.) 11 (1867) ; Hutchin- * Cook V. State, 60 Ala. 39 (1877). son v. State, 3 Coldw. (Tenn.) 95 5 Stubbs V. State, 49 Miss. 716 (1866). (1874) ; Price v. State, 36 Miss. 531 » Commonwealth v. Costello, 121 (1858) ; Wilson v. State, 2 Ohio St. Mass. 371 (1876) ; s.c. 28 Am. Rep. 319 (18.53) ; Crusen v. State, 10 Ohio 277 ; Jewell v. Commonwealth, 22 Pa. St. 258 (1859) ; Lynch v. Common- St. 94 (1853). wealth, 88 Pa. St. 189 (1879); s.c. 32 Am. Rep. 445. 384 HOMICIDE. [chap. XIX. present.^ The accused must also be present on the argument of a motion in arrest of judgment.^ Sec. 350. Presence presumed. — Some of the cases hold that unless it affirmatively appears from the record that the defendant was personally present during the trial, the judg- ment should be reversed.^ In view of the fact, however, that an appellate court will not presume error on the part of the court below, it is thought that where the record shows that the accused was present at the commencement of his trial, and nothing to the contrary appears therefrom, it will be presumed that he was present at every subsequent stage of the proceeding down to the rendering of the final judg- ment of the court.^ Sec. 351. Presence of counsel. — It seems that if the defendant himself is present, it is not necessary that his coun- sel should be, in the absence of a showing that the defendant was thereby prejudiced.^ 1 Simpson v. State, 5G Miss. 207 (1879) ; Rolls v. State, 52 Miss. 891 (1876); State v. Rippon, 2 Bay (S.C.) 100 (1797); Hooker v. Commonwealth, 13 Gratt. (Va.) 768 (1855) ; Reg. v. Caudwell, 15 Jur. 1011 (1851); 17 Q. B. 503 ; 6 Eng. L. & Eq. 352 ; King V. Fielder, 2 Dow. & Ry. 46 (1822). Compare Commonwealth t^ Costello, 121 Mass. 371 (1876) ; Jewell v. Com- monwealth, 22 Pa. St. 9-1 (1853) ; King i: Hollingberry, 6 Dow. & Ry. 344 (1825). 2 Rolls V. State, 52 Miss. .391 (1876); State V. Rippon, 2 Bay (S. C.) L. 100 (1797) ; Rex v. Spragg, 2 Burr. 930 (1760) ; S.C. 1 W. Bl. 209. 3 Graham v. State, 40 Ala. 659 (1867); Eliza v. State, 39 Ala. 693 (1866); Kelly v. State, 11 Miss. (8 Smed. & M.) 518 (1844) ; State v. Dool}', 64 Mo. 149 (1876) ; State ;•. Allen, 64 Mo. 67 (1876) ; State v. Barnett, 63 Mo. 300 (1876) ; State v. Jones, 61 Mo. 232 (1875) ; State V. Barnes, 59 Mo. 154 (1875) ; Sha- poonmash v. United States, 1 Wash. Tr. 219 (1862) ; Younger v. State, 2 W. Va. 579 (1868). ' * Brown v. State, 13 Ark. 96 (1852) ; Smith V. State, 60 Ga. 430 (1878) ; Rhodes v. State, 23 Ind. 24 (1865) ; Harriman v. State, 2 Greene (Iowa) 270 (1849) ; Grimm v. People, 14 Mich. 300 (1866) ; Dodge v. People, 4 Neb. 220 (1876) ; Stephens v. Peo- ple, 19 N. Y. 549 (1859) ; State v. Craton, 6 Ired. (N. C.) L. 164 (1845) ; Holmes v. Commonwealth, 25 Pa. St. 221 (1855). 5 Sutcliffe V. State, 18 Ohio, 469 (1849); S.C. 51 Am. Dec. 4.59; Crusen r. State, 10 Ohio St. 258 (1859) ; Benuniont r. State, 1 Tex. App. 533 (1877) ; S.C. 28 Am. Rep. 424. CHAPTER XX. THE TRIAL THE JURY. Sec. 352. Right to trial by jury. Sec. 353. Waiver of trial by jury. Sec. 354. Drawing, summoning, and impanelling jury. Sec. 355. Qualiiications of jurors. Sec. 356. Same — Conviction of infamous crime — Pardon. Sec. 357. Same — When objection to be taken. Sec. 358. Defendant's list. Sec. 359. Challenge for cause — Implied bias. Sec. 360. Same — Actual bias. Sec. 361. Same — Prejudice against capital punishment. Sec. 362. Same — Prejudice against defence of insanity. Sec. 363. Same — Prejudice against " anarchism." Sec. 364. Same — Prejudice against circumstantial evidence. Sec. 365. Same — Kight to challenge — Re-opening right. Sec. 366. Peremptory challenges. Sec. 367. Swearing the jury. Sec 368. Discharge of jurors. Sec. 369. Separation — During trial. Sec. 370. Same — Permission to visit sick relation. Sec. 371. Same — During meals, etc. Sec. 372. Same — Separation after retiring. Sec. 373. Misconduct by or relating to the jury during trial. Sec. 374. Same — As to officer in charge. Sec. 375. Same — Holding communication with outside parties. Sec 376. Same — Attending church. Sec 377. Same— Use of liquor by jury. Sec 378. Same — Discretion of trial judge. Sec 379. Same — Conduct and words of counsel. Sec 380. Same — Waiver of irregularities. Sec 381. Misconduct by or relating to the jury after retiring. Sec. 382. Same — Law books in jury room. Sec 383. Same —Examining things not in evidence. Sec. 352. Right to trial by jury. — The right to a trial by jurj- is a constitutional right ^ in all homicide cases of 1 The federal constitution and tlie with varying phraseology, provide for constitutions of the different states, the perpetuity of trial by jury and 2 c 385 386 HOMICIDE. [chap. XX. wliicli the accused cannot be deprived Ly law.^ The pro- visions of the various state constitutions, guaranteeing the right of trial by jury, differ somewhat in form ; but the gen- eral principle contained in all of them is, that the right of trial by jury, as known and exercised by the people of the state at the time of the adoption of the constitution, shall be preserved and guaranteed to them under the constitution. In order, therefore, to determine in what cases the right to trial by jury in any particular state exists, it is necessary to definitely ascertain what was the extent of the right to that mode of trial, under the established law and practice of that state, at the time when it adopted its constitution. Professor Pomeroy, in his valual)le note to the second edition of Sedg- wick on the Construction of Statutory and Constitutional Law, says :'^ " It is the right of trial by jury which exists and is preserved, and what that right is, is a purely historical question, a fact to be ascertained like any other social, legal, or political fact. As a constitution speaks from the time of its adoption, the fact of the right to jury trial, which is ascer- tained to have existed at that time, must necessarily deter- positively forbid its violation. See, for the provisions of tlie various state constitutions relating to trial by jury in criminal cases, Ala. Const. 1868, art. 1, § 8; Ark. Const. 18()8, art. 1, § 8; Conn. Const. 1818, art. 1, § 0; Del. Const. 1831, art. 1, § 7; Ga. Const. 1868, art. 1, § 7 ; 111. Const. 1870, art. 2, § 0; Ind. Const. 1851, art. 1, § 13; Iowa Const. 1857, art. 1, § 10; Kan. Bill of Kights, 1859, § 10; Ky. Const. 1850, art. 13, § Ti ; La. Const. 1868. tit. 1, § 6; Me. Const. 1820, art. 1, § 6; Md. Bill of Riglits, 1867, art. 11; Mass. Bill of Kicrhts, 1870, art. 12; Midi. Const. 1850, art. 6, § 28; Minn. Const. 1857-8, art. 1, § 6; Miss. Const. 1868, art. 1, § 7; Mo. Const, art. 1, § 18; 1 Neb. C;onst. 1867, art. 1, § 7 ; N. H. Bill of Iliglits, 1792, art. 16; N. J. Const. 1844, art. 1. § 8; N. C. Const. 1868, art. 1, § 13 ; Dliio Const. 1850, art. 1, § 10; Oreg. Const. 1857, art. 1, § 11 ; Pa. Const. 1838, art 9, § 9; K. I. Const. 1842, art. 1, § 10; S. C. Const. 1868, art. 1, §§ 13, 14; Tenn. Const. 1870, art. 1, §"9; Tex. Const. 1869, art. 1, § 8 ; Vt. Bill of Rights, 1793, art. 10; Va. Const. 1870, art.], § 10; W.Va. Const. 1872, art. 3, § 14; Wis. Const. 1848, art. 1, § 7. 'J'he sixth amendment to tlie Con- stitution of the United States provides for jury'trials in all criminal prose- cutions, but tills provision applies only to cases tried in the United States courts. See Twitchell v. Commonwealth, 74 U. S. (7 Wall.) 321 (1868); bk. 19 L. ed. 223 ; Lee v. Tillotson, 24 Wend. (N. y.) 337 (1840). 1 Hill r. People, 20 N. Y. 363 (1859) ; Wyneiiamor ?•. People, 13 X. Y. 378 (1856) ; People v. Baird, 11 Ilun (N. Y.) 289 (1877) ; People v. Kennedy, 2 Park. Cr. Cas. (N. Y.) 312 (1855) ; Copp v. Henniker, 55 N. H. 179 (1875) ; s.c. 20 Am. Rep. 194, 197. 2 See p. 487. SEC. 353.] THE JURY. 387 mine the meaning of the clause which recognizes and pre- serves that right. The courts seem, with great unanimity, to liave accepted this general principle of construction, and not to liave rested their decisions upon the special language of the clause under consideration.'" In the case of Copp v. Henniker ^ it is said, " The right is the historical right enjoyed at the time it was guaranteed by tlie constitution " ; in East Kingston v. Towle ^ that, " The trial by jury secured to the subject by the constitution is a trial according to the course of the common law, and the same in substance as that which was in use when the constitution Avas framed." On this point all the decisions agree.^ These provisions of the various state constitutions relative to the right of trial by jury were neither intended to increase nor restrict or otherwise impair the right as it existed at the time;* and they do not extend the right to cases unknown to the conunon law.^ Sec. 353. Waiver of trial by jury. — The right to a trial by jury is a constitutional right of which one accused of homi- cide or other felony cannot be deprived by law,^ and one 155N. H. 179, 195 (1875). 2 48N. H. 57, 64 (1868). 3 Tims V. State, 26 Ala. 165 (1855) ; Whallon v. Bancroft, 4 Minn. 109 (1860) ; Koppikus v. Commissioners of State Capitol, 16 Cal. 248 (1860) ; Guile V. Brown, 38 Conn. 237 (1871) ; Lake Erie W. &St. L. R. Co. r. Heath, 9Ind. 538 (1857); Ross v. Crawford Co., 16 Kan. 411 (1876) ; Swart v. Kimball, 43 Mich. 443 (1880) ; s.c. N. W. Rep. 635; Tabor v. Cook, 15 Mich. 322 (1867) ; Commissioners v. Morrison, 22 Minn. 178 (1875) ; Opin- ion of Justices, 41 N. H. 550 (1859) ; Backus V. Lebanon, 11 N. H. 19 (1840) ; State v. Raymond, 11 Nev. 98 (1876) ; State v. McClear, 11 Nev. 39 (1876) ; Howe i\ Treasurer of Plainfield, 37 N. J. L. (8 Vr.) 145 (1874) ; Sands v. Kimbark, 27 N. Y. 147 (1863) ; People v. Fisher, 20 Barb. (N. Y.) 652 (1855) ; Murphy v. Peo- ple, 2 Cow. (N. Y.) 815 (1824) ; Peo- ple V. Clark, 23 Hun (N. Y.) 374 (1881); Howell v. Fry, 19 Ohio St. 556 (1869) ; Rhines v. Clark, 51 Pa. St. 96 (1865) ; Byers v. Common- wealth, 42 Pa. St. 89 (1862) ; Com- missioners V. Seabrook, 2 Strob. (S. C.) L. 560 (1846) ; Trigally v. Mayor, &c. of Memphis, 6 Coldw. (Tenn.) .382 (1869) ; Buffalo Bayou, B. & C. R. Co. r. Ferris, 26 Tex. 588 (1863); /n re Hackett, 53 Vt. 354 (1881); State v. Peterson, 41 Vt. 504 (1869) ; Dane Co. v. Dunning, 20 Wis. 210 (1866) ; Mead i'. Walker, 17 Wis. 189 (1863) ; Stillwell r. Kel- logg, 14 Wis. 461 (1861). * Howe V. Treasurer of Plainfield, 37 N. J. L. (8 Vr.) 145 (1874) ; Byers V. Commonwealth, 42 Pa. St. 89 (1862) ; Commissioners v. Seabrook, 2 Strobli. (S. C.) L. 560 (1846) ; Mead V. Walker, 17 Wis. 189 (1863); Stil- well r. Kellogg, 14 WMs. 461 (1861). 5 Tims r. State, 26 Ala. 165 (1855). See People v. Penhallow, 42 Hun (N. Y.) 103 (1886) ; Territory v. Hit- tick, 2 Orleans T. R. (1 Mart.) La. 87 (1811). « See Hill v. People, 20 N. Y. 363 (1859) ; Wynehamer r. People, 13 388 HOMICIDE, [chap. XX. which, it is thought, cannot be voluntarily waived, except by a plea of guilty ; particularly in a capital case,^ unless ex- pressly permitted so to do by constitutional or statutory enact- ments.^ The reason for this rule is thought to be because the state and the public have an interest in the preservation of the liberties and the lives of the citizens, and will not allow either to be taken away without due process of law and in the regularly constituted manner. A further reason evidently is that the substantial constitution of the legal tribunal and the fundamental mode of its proceedings are not within the power of the parties, and consequently the right to affect, by consent, the conduct of the prosecution in such a case should not be permitted to extend so far as to work radical changes in great and leading provisions as to the organization of the N. Y. 378 (1856); People v. Baird, 11 Hun (N. Y.) 289 (1877). i See Bond v. State, 17 Ark. 290 (185(5) ; Wilson v. State, 16 Aik. 601 (1855) ; State v. Cox, 8 Ark. (3 Eng.) 436 (1818) ; People v. O'Neil, 48 Cal. 257 (1874); KelJij v. People, 115 111. 583 (1886) ; s.c! 56 Am. Rep. 184; 4 N. E. Rep. 644; Allen v. State, 54 Ind. 461 (1876) ; Brown v. State, 16 Ind. 496 (1861); Brown v. State, 8 Blackf. (Ind.) 561 (1847) ; State v. Carman, 63 Iowa, 130 (1884) ; s.c. 50 Am. Rep. 741 ; 18 N. W. Rep. 691 ; 18 Cent. L. J. 317 ; State v. Lyons (Iowa) 18 Cent. L. J. 481 (1884) ; Tyra r. Commonwealth, 2 Met. (Ky.) 1 (1859) ; Murphy r. Commonwealth, 1 Met. (Ky.) 365 (1858) ; Portland v. Bangor, 65 Me. 120 (1876) ; Swart V. Kimball, 43 Mich. 443 (1880) ; s.c. 5 N. W. Rep. 635 ; Underwood v. People, 32 Mich. 1 (1875); Hill v. People, 16 Mich. 357 (1868) ; People V. Smith, 9 Mich. 193 (1861); Briin- ingstool V. People, 1 Mich. N. P. 260 (1870) ; State r. Everett, 14 Minn. 439 (1869) ; Dowling t-. State, 13 Mis.'!. (5 Smcd. & M.) 664 (1816) ; Tillman r. Aillos, 13 Miss. (5 Smed. 6 M.) 373 (1845) ; State v. Davis, 66 Mo. 684 (1877); State v. Mansfield, 41 Mo. 470 (1867) ; Vaughn v. Scade, 30 Mo. 600 (1860); Ncales v. State, 10 Mo. 498 (1847) ; Territory v. Ah Wall, 4 Mont. 149 (1881) ; s.c. 1 Pac. Rep. 732 ; Kleinschmidt v. Dunphy, 1 Mont. 118 (1869) ; Opinions of Justices, 41 N. H. 550 (1859) ; Pier- son V. People, 79 N. Y. 435 (1880); Maurer v. People, 43 N. Y. 1 (1870) ; Cancemi v. People, 18 N. Y. 128 (1858) ; People v. Special Sessions, 4 Hun (N. Y.) 444 (1875) ; People v. Rulloff, 5 Park. Cr. Cas. (N. Y.) 81 (1860); Grant v. People, 4 Park. Cr. Cas. (N. Y.) 534 (1859); Slate v. Holt, 90 N. C. 749 (1884) ; s.c. 47 Am. Rep. 544 ; Hanoff v. State, 37 Ohio St. 187 (1881); Billigheimer v. State, 32 Ohio St. 441 (1877); Cant- well >: State, 18 Ohio St. 481 (1869) ; Goodin r. State, 16 Ohio St. 344 (1865) ; Williams v. State, 12 Ohio St. 622 (1861) ; Work r. State, 2 Ohio St. 296 (1853); Hirn v. State, 1 Ohio St. 23 (1852) ; Lincoln v. Smith, 27 Vt. 328 (1855) ; State r. Lockwood, 43 W^is. 403 (1877) ; Forsyth's Jury Trial, 354; Proffat's Jury Trial, 113; 2 Story Const., p. 541, § 1780. Compare State v. Kaufman, 51 Iowa, 578 (1879). 2 State V. Worden, 46 Conn. 349 (18*8) ; s.c. 1 Cr. L. Mag. 178; Mays r. Commonwealth, 82 Va. 550 (1886); s.c. 4 Va. L. J. 88 ; In re Staff, 63 Wis. 285 (1881) ; s.c. 6 Cr. L. Mag. 829 ; 23 N. W, Rep. 587. SEC. 354.] THE JURY. SS9 tribunals, or the mode of proceeding prescribed by the consti- tution and the hxws.^ Sec. 3o4. Drawingr, summoning, and impanelling jury. — Tlie proceedings for obtaining jurors in prosecutions for homicide are usually the same as in trials for other felonies ; but it is sometimes provided that certain special proceedings shall be had, or special precautions taken, in prosecutions where the punishment may be capital.^ In such cases all proceedings connected with the jury should be carried on with especial care and with the utmost caution, as an inci- dent of the slightest weight may operate to the defendant's prejudice ; and where the charge is for a capital offence, the defendant should not be allowed to waive the prescribed mode of drawing or summoning the jury, nor should any of the proceedings be varied in the slightest manner from the mode prescribed by law.^ It is thought that the fact that all the names in the jury box prior to the convening of the court ai'C exhausted, or that the other contingencies, enumerated in the statute * as pre- requisite to the right of the judge and sheriff to prepare the list, actually exist, must appear affirmatively upon the record, where the regularity and validity of a conviction for murder is in question.^ It is said in State v. Collins « that the fact that, in a murder trial, a panel of forty qualified jurors was procured on the sixth, when the cause was not to be tried until the tenth, constitutes no error. In the absence of a showing to the contrary, it will always be presumed that the summoning of the jurors was regular ;7 and where there are mistakes in the process, or in the names of the jurors, the error must be taken advantage of before conviction.^ It seems, however, that a slight deviation in the summoning of the jury, in point of time, is no serious error, where no preju- dice to the defendant is shown ; ^ nor is it ground for reversal 1 Cancemi v. Tcople, 18 N. Y. 128 ^ Such as the Idaho Jury Act. (1858-) ; s.c. 7 Abb. (N. Y.) Pr. 271. '''' People r. Dunn, 1 Idaho, 75 2 Morrison v. State, 84 Ala. 405 (1866). (1887) ; s.c. 4 So. Rep. 402. <> 86 Mo. 245 (1885). 3 It has been said that tlie defend- " Rash v. State, 61 Ala. 89 (1878). ant may waive the qualification or ^ .Jewell v. Commonwealth, 22 Pa. the legal manner of selecting jurors. St. 94 (185?)). Cancemi v. People, 18 N. Y. 136 ^ See People v. Vance, 21 Cal. 400 (1858). (1863). 390 HOMICIDE. [chap. XX. that some of the panel are excused before trial without the de- fendant's consent.! j^ ig often provided that a special venire may be ordered in a capital case ; '^ and this order sliould be shown by the record.^^ Where the number of jurors regularly summoned has been exhausted without obtaining a jury, it is proper, in some states, to order the officer of the court to sunnuon talesmen for its completion,"^ and such an order, even in a prosecution for a capital offence, may be made orally, and need not be entered of record.'^ But talesmen should not be called until all the jurors, either regularly called or specially summoned, have been disposed of. AVhere, in a capital case, the number of regular jurors had been exhausted witliout making up the panel, and the prisoner's counsel moved that the court order additional regularly appointed jurors to be summoned instead of appointing talesmen, it was held that the court committed no eiTor in denying the motion.*^ And in the recent case of Morrison v. State,' under a statute pro- viding that on a trial for a capital offence, the names of the special jurors for the case and the regular jurors in attend- ance must be written on slips of paper, and all placed in the same box, and an officer designated by the court must draw them out, one by one, and if from these names a jury be not obtained, the court must direct the sheriff to summons other 1 People r. Lee, 17 Cal. 70 (1860). State. 10 Ohio St. 598 (1857); s.c. 2 See .Jackson v. State, 77 Ala. 18 Law. Insaii. 432. (1884) ; State v. Murph, 1 Winst. It is no ground of challenge to the (N. C.) No. 1, 129 (1863); Loeffner array in a capital case, that it docs V. State, 10 Ohio St. 598 (1857) ; s.c. not appear, from an order for a special Law. Insan. 432 ; Steagakl v. State, venire fucius, tliat it was made in the 22 Tex. App. 464 (1886) ; s.c. 9 Cr. L. case of the prisoner. It is sufficient Mao-. 515; 3 S. W. Rep. 771. if it appears that it was made at the In summoning a special venire for term at wliicli the trial was had. State a capital case, which, under Alabama r. Murph, 1 Winst. (N. C.) No. 1, 129 Code, §§ 4872, 4874, must include the (1863). "regular jury," or "those summoned ^ gteagald v. State, 22 Tex. App. on the regular juries for the week," 464 (1886); s.c. 9 Cr. L. Mag. 515; only jurors regularly summoned and 3 S. W. Kep. 771. in attendance are meant, — not tales- •* See Morrison v. State, 84 Ala. men, or those failing to attend, or 405 (1887) ; s.c. 4 So. Rep. 402; State thQse excused. Jackson v. State, 77 r. Allen, 47 Conn. 121 (1879). Ala. 18 (1884). ""' Morrison v. State, 84 Ala. 405 A vefiire for a special jury in a (1887); s.c. 4 So. Rep, 402. capital case need not either be enti- « State v. Allen, 47 Conn. 121 tied as of the case pending, nor state (1879). the name of the person alleged to ' 84 Ala. 405 (1887) ; s.c. 4 So. have been murdered. Loeffner v. Rep. 402. SEC. 356.] THE JURY. 391 jurors. The officers who had charge of the drawing of a jury in a capital case failed to put all the names of those sum- moned as jurors in the box. All the names put in were drawn out, and a jury obtained. The court ordered the other names to be put in the box, and the drawing proceeded. The defendant insisted that talesmen should be summoned, which the court refused, until all jurors summoned had been drawn, when talesmen were summoned to complete the jury, and the appellate court held that the refusal of the trial court to grant the defendant's request was proper. Sec. 355. Qualifications of jurors. — The qualifications prescribed for jurors in homicide cases are the same as are required in all other criminal prosecutions. They must be good and lawful men,i qualified electors of the county ,2 and must not have served on the grand jury which found the indictment.^ But the fact that a person summoned as a juror has been peremptorily challenged by the defendant at a former trial of the indictment does not disqualify him.* It is said in State v. Kelly,^ that on a trial for murder, the court may excuse a juror where he does not remember whether he was on the grand jury that found the indictment, and the court cannot find the record which would give in- formation as to whether he was on such jury. And it will be presumed that the search after tlie record was sufficient, there being no evidence to the contrary. Sec. 356. Same — Conviction of infamous crime — Par- don. — On a trial for murder, a motion in arrest of judgment, on the ground that one of the jurors had been convicted of a felony, is properly overruled if it appears that the juror has been pardoned, where the effect of the pardon, under the constitution in force when it was granted, was not merely to release the offender from punishment, but in legal contempla- tion to obliterate the offence itself.'^ 1 See Potsdamer v. State, 17 Fla. ^ gee State v. Kelly, 1 Nev. 224 895 (1880) ; Edward v. Common- (I860). wealth, 78 Va. 89, 43 (1883) ; s.c. 8 * Blackman v. State, 80 Ga. 785 Va. L. J. 22; Puryear v. Common- (1888) ; s.c. 7 S. E. Rep. 020. wealth, 83 Va. 51 (1887); s.c. 9 Cr. ^1 Nev. 224 (1805). L, Mag. 788. e Edward r. Commonwealth, 78 Va. 2Costlyr. State, 19 Ga. 614 (1856). 39, 43 (1883); s.c. 8 Va. L. J. 22 ; 392 HOMICIDE. [chap. XX, Sec. 357. Same — When objection to be taken. — The objection to a particular juror should be taken when he appears, and before he is sworn ; ^ because the omission to challenge a juror at the time he is impanelled is regarded as a waiver of any objection to him, and his competency cannot, as a general rule, afterward be questioned by the party making such omission.^ But it is thought to be within the discretion of the trial court to allow a juror to be further interrogated even after he has been sworn,^ and if cause of disqualification be shown, a challenge maybe sustained.'^ But where the objection is not taken until after verdict, the verdict will not be set aside and a new trial ordered on this ground, unless it appears from the whole case that the juror was biased against the prisoner, who therefore did not have a fair and impartial trial. It was so held in S\veeney v. Baker.^ The party moving for a new trial, on the ground of the disqualification of one of the jurors, must show to the satis- faction of the court that both he and his attorney were ignorant Puryear i-. Comiiionwealtli, 83 Va. 51 (1887); s.c. 9 Cr. L. Mag. 788; 1 S. E. Rep. 512. 1 See People v. Dolan, 51 Mich. 610 (1883); s.c. 17 N. W. Rep. 78; State r. Dumphey, 4 Minn. 438 (18G0) ; Poindexter v. Commonwealth, 33 Gratt. (Va.) 766 (1880) ; s.c. 4 Va. L. J. 432 ; Reg. v. Kerr, 3 Leg. News, 299 (1880). 2 Keener v. State, 18 Ga. 194 (1855) ; s.c. 63 Am. Dec. 269. See Parmele V. Guthery,2 Root (Conn.) 185 (1795); s.c. 1 Am. Dec. 65 ; Glover i-. Wool- sey. Dud. (Ga.) 85 (1832) ; Hardy v. Sprowle, 32 Me. 310 (1850) ; Com- monicealth v. Knapp, 27 Mass. (10 Pick.) 477 (18^0) ; s.c 20 Am. Dec. 534; Jeffries v. Randall, 14 Mass. 206 (1817) ; Gillespie 7-. State, 8 Yerg. (Tenn.) 507 (1835); s.c. 29 Am. Dec. 137. The court say in Keener v. State, 18 Ga. 194 (1855); s.c. 63 Am. Dec. 269,271, that "the doctrine under- went a tlioroiiLrh investigation by the judges in convention in Glover r. Woolsey, Dud. (Ga.) 85 (18.32). It is true that was an action of assump- sit, but the reasoning of the conven- tion, as well as the authorities cited, apply to criminal as well as civil causes. It is there laid down as a well-settled rule that an omission to challenge a juror before trial is a waiver of the objection to him ; and that it would be most unreasonable to allow a party the benefit of a ver- dict, if favorable to him, and the benefit of a new trial on account of the objection if the verdict should be adverse." 3 See People v. Damon, 13 Wend. (N. Y.) 351 (1835) ; Bristow v. Com- monwealth, 15 Gratt. (Va.) 646 (1859) ; Dilworth ;•. Commonwealth, 12 Gratt. (Va.) 689 (1855) ; .'^.c. 05 Am. Dec. 264; Bennet v. State, 24 Wis. 59 (1809). •» See McGuire r. State, 37 Miss. 369 (1859) ; People v. Damon, 13 Wend. (N. Y.) 351 (1835). •'■' 1 3 W. Va . 228 (1 878) . See State V. McDonald, 9 W. Va. 465 (1876); citing Bristow's Case, supra. See Parmele v. Guthery, 2 Root (Conn.) 185 (1795) ; s.c. 1 Am. Dec. 65. SEC. 358.] THE JURY. 393 of the disqualification of the trial.^ Thus, if the party knew the facts, bat did not know that the law made them a dis- qualification ; "-^ or if he knew that a juror had formed and expressed an opinion, but did not know it was against him ; ^ or if the facts constituting the disqualification were known to counsel, but were forgotten at the time of the trial,^ a new trial will not be granted. It is said in Costly v. State ^ that the objection that a juror is disqualified to serve because a non-resident in the county, must, to be available, be taken before he is sworn, even in a capital offence."^ And by the supreme court of Fhnida in Potsdamer v. State,^ that it is too late to raise the objection that the record does not show that the petit jurors were good and lawful men, for the first time in the supreme court. And in State v. Quarrel ^ it is said that if an alien is drawn and impanelled on the jury, it is a good cause of challenge before trial ; but if allowed to be SAVorn by the prisoner, it is too late after trial and conviction to make it a ground for a new trial.^ But it is held by the supreme court of JNIichigan in the case of Johr v. People '^^ that an alien being on a jury in a trial for felony vitiates the judgment. Sec. 358. Defendant's list. — Where the indictment is for a capital offence the law sometimes gives the defendant the right to have served upon him, before trial, a list of the jurors summoned.ii This right, however, depends entirely 1 State V. Tullcr, 34 Conn. 280 « 2 Bay (S. C.) 150 (1798) ; s.c. 1 (1867) ; Morrison i: IMcKinnon, 12 Am. Dec. OoZ. Fla. 552 (186!)) ; Anderson v. State, ^ See State v. Vogel, 22 Wis. 471 14 Ga. 70!l (1854) ; Kent v. Cliarles- (1868). town, 68 Mass. (2 Gray) 281 (1854) ; ^> 26 Mieh. 427 (1873). Eastman v. W^ulit, 4 Ohio St. 156 " Kenan y State, 73 Aln. 15 (1882) ; (1854). '^ Aikin v. State, 35 Ala. 3i)9 (1860); ^ Dolloff V. Stimpson, 33 Me. 546 State *•. Ward, 14 La. An. 684 (1859) ; (1852). State v. Bangor, 30 Me. 341 (1849); 3 Bell V. Howard, 4 Litt. (Kv.) 117 State i: Brooks, 30 N. J. L. (1 Vr.) (1823). ' 356 (1863). See Ala. Code 1876, § + Cannon v. Bullock, 26 Ga. 431 4782; La. Bev. Stat. 1876, § 992; (1858). 1879, c. 55, § 1; Me. Rev. Stat. 1871, il9Ga.614 (1856). e. 134, § 14; Miss. Rev. Code 1880, 6 Costly 1-. State, 19 Ga. 614 § 3057 ; Mo. Rev. Stat. 1879, §§ 1900, (1856). 1904; N. H. Gen. Stat. 1867, e. 243, ' 17 Fla. 895 (1880). § 1 ; Ohio Rev. Stat. 1880, §§ 7271, 7273. 394 HOMICIDE. [chap. XX. upon statute,^ no such privilege existing at common law. And it can only be claimed under the statute and in cases which fall within the statute.^ But under such a statute the defendant is not entitled to be served before trial with a list of the talesmen.^ The right to a copy of the venire under such statutes is a valuable one of which the defendant cannot be deprived without his consent ; ^ but which he will be regarded as having waived by a failure to demand it.^ The object of conferring this right upon the accused is to enable him better to exercise his right of challenge ; and, hence, this part of the proceedings should be carried on with that object in view, and the service of any list which will accomplish this purpose is suihcient.*" The statutes of the different states on this subject vary considerably in their V. State, 45 Ala. 21 V. Dowling, 3 Cox C. C. Bangor, 30 Me. 341 Buckner, 25 Mo. 167 1 See Driskill v. State, 45 Ala. 21 (1871) ; Keg. v. Dowling, 3 Cox C. C. 509 (1848). 2 Driskill (1871); Keg 509 (1848). 3 State V, (1849). * State V. (1857). 5 State V. Cook, 20 La. An. 145 (1868) ; State v. Jackson, 12 La. An. 679 (1856) ; State v. Hernandez, 4 La. An. 379 (1849); State v. Klinger, 46 Mo. 224, 227 (1870) ; State v. Waters, I Mo. App. 7 (1876) ; s.c. 62 Mo. 196; State V. Fisher, 2 Nott & McC. (S. C.) 261, 264 (1820) ; Craft v. Common- wealth, 24 Gratt. (Va.) 002, 609 (1873) ; Peterson v. State, 45 Wis. 535 (1878). •^ It not appearing that the defend- ant had been misled by the venire, which only gave the initials of the Ciiristian names, nor that the jurors were not customarily known by their initials, the venire was held good in Aikin v. State, 35 Ala. 399 (1860). In this case the sheriff, when he served the venire upon the prisoner, told him that it was " a list of the jury sum- moned to try his case for the murder of A., at the present term of the court," and read the list to him. The court held that it was not fatal that the list was headed "jurors summoned for M. instead of jurors summoned to try M." A list of jurors, headed "list of jurors for the third and fourth weeks of the October term of the district court of the parish of Caddo," duly served on the prisoner, was held to be a sufficient compliance with law in State V. Ward, 14 La. An. 684 (1859). A list of jurors served on a defend- ant indicted for murder, at the same time with a copy of the indictment, having on it the words "petit jury, April term, 1863," followed by forty- eight names, with abbreviations of the names of the places of residence, which, however, could be understood as well as if there were no abbrevia- tions, is sufficient. And it makes no difference that there is a cross between the two parts of the name of a juror. State V. Brooks, 30 N. J. L. (1 Vr.) 356 (1863). While proceedings are in ^firri, tlie court may permit the sheriff to amend the list of jurors served on defendant so as to correspond to the title of the cause, and to correct the return of service so as to correctl\' show service on defendant. Kenan r. State, 73 Ala. 15 (1882). SEC. 360.] THE JURY. 395 terms, some of them providing for the service of a copy of the panel or array assembled to serve generally for the term, and others for a copy of the special panel assembled to serve in the particular case ; some of them providing for the service of the list of those who have been actually sum- nioned,^ others for the service of a list of those who have not been drawn. Judge Thompson says ^ that under the former statutes it is not sufficient to serve a list of those who have been drawn merely ; ^ nor under the latter will the statutory right be accorded by the service of a long list of persons, most of whom, to the knowledge of the officer, have been excused.^ Sec. 359. Challenge for cause — Implied bias. — A juror may be challenged for implied bias in prosecutions for homi- cide, as well as in other cases, if within the prohibited degree of consanguinity or affinity to the defendant or the deceased ; and if it be found that a person so related has served upon the jury, a verdict of guilty will be reversed.^ It has been held that ignorance as to the relationship is cause to treat service as a juror in the same manner as if the juryman had not been so related. Thus it is said by the supreme court of Pennsyl- vania in Traviss v. Commonwealth^ that a new trial for murder will not be granted because one of the jurors was second cousin to the deceased, of which relationship he was wholly ignorant. Sec. 360. Same — Actual bias. — A juror may be chal- lenged for actual bias when it is fairly shown that he has a decided opinion as to the defendant's guilt or innocence, which would probably affect his verdict ; but the mere fact 1 Murray i-. State, 21 Tex. App. v. Congdon, 14 E. I. 458 (1884) ; Par- 466 (1880); s.c. 8 S. W. Rep. 104; rish v. State, 12 Lea (Tenn.) 655 Pascli. Dig. Tex. Stat., art. 3022 ; Tex. (1883). A verdict of manslaughter Code Crim. Proc, art. 611. will be reversed if a juror related to 2 See 1 Thomp. on Trials, 16. the defendant within the prohibited 3 Drake v. State, 5 Tex. App. 649 degree has been passed as competent. (1879) ; Harrison r. State, 3 Tex. Parrish v. State, 12 Lea (Tcnn.) 655 App. 558 (1878). (1883). Consanguinity in the sixth * State V. Howell, 3 La. An. 50, 52 degree between a juror and one tried (1848). See State v. Guidry, 28 La. for murder will not necessarily be An. 631 (1876). deemed ground for a new trial. State 5 See State r. Hanlev, 34 Minn. 4-30 v. Congdon, 14 R. I. 458 (1884). (1886) ; s.c. 26 N. W. Rep. 397 ; State ^ iqq Pa. St. 597 (1884). 396 HOMICIDE. [chap. XX. that the juror has formed or expressed an opinion not posi- tive and based upon rumor, does not disqualify him, where it is his opinion that he can try the case impartially and fairly, according to the law and the evidence as received by the jury, without regard to, and notwithstanding what he has read or heard.^ Thus in Holt v. People,^ which was a trial for mur- der, a juror, examined as to his competency, said, " I have formed a partial opinion as to the guilt or innocence of the defendant from rumors heard in the street, but not a positive opinion." This was held not to be such an opinion as would disqualify him. Where a juror admits that he had formed an impression from what he had read, but it was not what he would call a fixed opinion, the court held that the question as to what he meant by the impression, " whether it was the same thing as an opinion," was properly overruled, and that the juror was competent.^ It is not ground for a new trial that a juror who had stated on his voir dire that he had no prejudice against the defendant, and could render an impartial verdict, was subsequently dis- covered to have stated before the trial that he believed the de- fendant guilty, because two juries had found him guilty, as the two statements are not inconsistent.* In the case of Simms V. State ^ one convicted of murder moved for a new trial on the ground that one of the jurors, before being impanelled, said that if put on the jury he would hang the defendant. By a counter-showing it appeared that the juror's remark was a mere device to avoid service on the jury, and that he had no actual bias against the prisoner, and the motion was prop- 1 S/?/esv.Peo/)/e (Anarchists' Case), wealth (Pa.), 10 Or. L. Mag. 409 122 III. 1 (1887) ; s.c. 3 Am. St. Rep. (1888) ; s.c. 12 Atl. Rep. 103; Stea- 320; 9 Or. L. Mag. 829 ; (5 Am. Or. gakl c. State, 22 Tex. App. 404 (1880) ; Rep. 570; 12 N. E. Rep. 805; 17 N. E. s.c. 9 Cr. L. Mag. 515 ; 3 S. W. Rep. Rep. 898; State t: Vatter, 71 Iowa, 771. See People v. Woods, 29 Cal. 557 (1887); s.c. 32 N. W. Rep. 500; 035 (1800); Blackman v. State, 80 State V. Sopher, 70 Iowa, 494 (1880) ; Ga. 785 (1888) ; s.c. 7 S. E. Rep.02() ; s.c. 9 Cr. L. Mag. 218 ; 30 N. W. Rep. Simms v. State, 8 Tex. App.230 (1880). 917 ; Roy v. State, 2 Kan. 405 (1804) ; 2 1.3 Mich. 224 (1805). Holt V. People, 13 Mich. 224 (1805) ; 3 Hall v. Commonwealth (Pa.), 10 Parker v. State, 55 Miss. 414 (1877) ; Cr. E. Mag. 409 (1888) ; s.c. 12 Atl. Murpiiy V. State, 15 Neb. 383 (1884) ; Rep. 103. s.c. 19 N. W. Rep. 489; State 1: « Blackman v. State, 80 Ga. 785 Saunders, 14 Oreg. 300 (1880) ; s.c. (1888) : s.c. 7 S. E. Rep. 020. 12 Pac. Rep. 441 ; Hall i: Coiiniiou- ^ 8 Tex. App. 230 (1880). SEC. 361.] THE JUEY. 397 eiiy overruled. In the case of Steagakl v. State ^ a proposed juror admitted that he had formed an opinion respecting the defendant's guilt or innocence, and that it would require evi- dence to remove it. He stated further that the opinion was formed on hearsay, which he valued little, and that he could render an impartial verdict upon the law and the evidence. The juror was held to be qualified and not subject to chal- lenge for cause. Sec. 361. Same — Prejudice against capital punisluiient. — Where, in a prosecution for a homicide the punishment for which is capital, a juror, on his voir dire examination, states that he has conscientious scruples against capital pun- ishment, which would probably influence him in returning a verdict, he may be challenged for cause by the prosecution,'^ even though he may declare that he can try the case fairly, and carry out the law ; his opposition being to the law pre- scribing the punishment, and not to its fulfilment by the courts. Thus on the trial of an indictment for murder, a juror answered on his voir dire that he regarded the law inflicting a death penalty as wrong, but thought the jury should carry out the law; that he had conscientious scruples aside from the law, but felt free to carry out the law ; that he had for years thought the law was not just right, and that leaving out the law, he had scruples. The court held, that although the case was not within the letter of the stat- ute prescribing as cause for challenge such conscientious opinions as woidd preclude affixing the death penalty in a capital case,^ the discharge of the juror against the defend- ant's objection was not ground for reversal of a conviction.* But in all those cases where the indictment is for homicide of a grade not capital, the opinions of a juror as to the death penalty are immaterial.^ 122 Tex. A pp. 404 (ISSfi) ; s.c. 9 each had answered that he "would Cr. L. Mag. 515 ; ?> S. W. Rep. 771. not like for a man to be hanged," was - Murpliy V. State, 37 Ala. 142 held to be error. Smith v. State, 55 (1801); State v. Jewell, 33 Me. 583 Miss. 410 (1877). (1851). See Smith v. State, 55 Miss. 3 in,i. Rev. Stat. 1881, § 1791. 410 (1877). On a trial for murder a '^ Stevenson v. State, 110 Ind. 358 refusal to comply with the request of (1880); s.c. 59 Am. Rep. 210; 11 the accused further to examine two N. E. Rep. 300. meTiibers of the special venire touch- ^ Finn i'. State, 5 Ind. 400 (1854). ing their conscientious scruples, after 398 HOMICIDE. [chap. XX. Sec. 362. Same — Prejudice against defence of insanity. — It may sometimes be cause for challenge that a juror is prejudiced against the defence of insanity ; but not where he states on his voir dire examination that he can try the cause fairly and impartially according to the law and the evidence, under such a defence. Thus in Hall v. Commonwealth,^ a juror having on his voir dire declared that he had conscien- tious scruples against a defence on the ground of insanity, it was held that it was not error to exclude defendant's questions : "■ Whether under any circumstances, in his capac- ity as a juror, he thinks it Avould be possible to set up such a defence, and if he would consider it a valid defence? Whether he could conceive of any case in which there could be such a defence, which he would entertain as a juror?" Sec. 363. Same — Prejudice against "anarchism." — Prejudice against " anarchism " cannot disqualify a juror upon the trial of an indictment of an anarchist for murder, result- ing from an anarchistic conspiracy ; for anarchy is crime, and prejudice against crime is not only proper in a juror, but laudable.2 In the famous Anarchists' Case^ the court say: " The juror . . . further stated that he had a prejudice against socialists, communists, and anarchists. This did not disqualify him from sitting as a juror. If the theories of the anarchist should be carried into practical effect, the}^ would involve the destruction of all law and government. Law and government cannot be abolished without revolution, blood- shed, and murder. The socialist or communist, if he at- tempted to put into practical operation his doctrine of a community of property, would destroy individual rights in property. Practically considered, the idea of taking a man's property from him without his consent, for the purpose of putting it into a common fund for the benefit of the commu- nity at large, involves the commission of theft and robber}-. Therefore the prejudice which the ordhiary citizen, wlio looks at things from a practical standpoint, would have aganist anarchism and communism, would be nothing more 1 10 Cr. L. Mag. 409 (Pa.) 1888; St. Rep. 020; 9 Cr. L. Mag. 829; G 12 Atl. Rep. 1G3. Am. Cr. Rep. 570 ; 12 N. E. Rep. 865 ; 2 See Spies v. People (Anarchists' 17 N. E. Rep. 898. Case), 122 111. 1 (1887) ; s.c. 3 Am. SEC. 365.] THE JURY. 399 than a prejudice against crime. In Winnesheik Insurance Co. V. Scliueller,^ Ave said: 'A man may have a prejudice against crime, against a mean action, against dishonesty, and still be a competent juror. This is proper, and such prejudice will never force a jury to prejudice an innocent and honest man.' In Robinson v. Randall,'^ we again said : ' The mere fact, therefore, that a juror may have a prejudice against crime does not disqualify him as a juror. A juror may be prejudiced against larceny, or burglary, or murder, and yet such fact would not in the least disqualify him from sitting upon a jury to try some person who might be charged with one of these crimes.' " Sec. 304. Same — Prejudice ag'sviiist circumstantial evi- dence. — It is good cause for challenge that a juror states that he would not convict a person accused of murder upon circumstantial evidence alone.^ Sec. 365. Same — Rij'iit to clialleng^e — Reopening right. — In the case of Reg. v. Coulter,* upon a trial for murder, after the usual notice of right of challenge, two jurymen were sworn without challenge. J. H. was then called, and a person came forward and was sworn. Others were called and challenged ; and after another Avas called and SAvorn Avithout challenge, the prisoner's counsel objected to J. H., as he Avas a Avitness in the case. Upon inquiry he Avas found not to be the person intended to be called on the jury, being not only a Avitness, but not a resident in the counties, and therefore not qualified as a juryman. Upon consent of counsel for the croAvn and prisoner, he Avas alloAved to retire, and others Avere called and sworn, the prisoner exercising the riglit to challenge, till the jury Avas chosen. After conviction, upon motion for a new trial, the court held (1) that J. H., though improperly SAVorn, AA'as legally dis- charged from tlie jury ; (2) that the right of challenge as to those previously SAvorn Avas not thereby re-opened, their re-swearing not being rendered necessary ; and (3) that the prisoner Avas properly tried by the tAA^elve, although thirteen Avere sworn to try him. 1 60 111. 465 (1871). 8 State v. Leobe, 89 Mo. 247 (1886); 2 82 111. 521 (1876). s.c. 1 S. W. Rep. 288. 4 13 Up. Can. C. P. 299. 400 HOMICIDE. [chap. XX. In Whalen v. Reg.,^ on the trial of an indictment for mur- der, the prisoner desired to challenge one S., one of the jurors called, for favor, alleging sufficient cause. The judge ruled that he must first exhaust his peremptory challenges, and this point was raised by plea and demurrer, and formally decided. The entry on the record then was, that in defer- ence to the judgment, the challenge was taken and treated as a peremptory challenge for and on behalf of the prisoner. Afterwards, having exhausted twenty challenges, including S., he claimed to challenge peremptorily one H., contending that by the erroneous ruling, he had been compelled to chal- lenge S. peremptorily, and should not be obliged to count him as one of the twenty. This was also entered of record and decided against him. The court held that the prisoner was entitled to challenge for cause before exhausting his peremp- tory challenges ; that error would lie for the refusal of this right ; and that had S. been sworn, there must have been a venire de novo; also that by the peremptory challenge of S., which excluded him from the jury, the first ground of error was removed ; and that error on the second challenge could not be supported, for the prisoner had in fact had twenty peremptory challenges, and the peremptory challenge of S., l^eing in deference to the ruling of the judge, did not make it the less a peremj^tory challenge. Sec. 306. Peremptory challenj?es. — At common law the number of jurors whom the defendant was permitted to chal- lenge peremptorily in cases of felony was thirty-five,^ but the number allowed is now usually prescribed by statute, and it is generally the same in all homicide cases as it is in other prosecutions for felony ; ^ but a larger number of chal- lenges is sometimes allowed in trials for capital offences.^ 1 28 Up. Can. Q. B. 2 ; s.r. affirmed (1811); Gray v. Reg., 11 CI. & F. 427, 28 Up. Can. Q. B. 108. 459 (1844). 2 United States v. Johns, 4 U. S. ^ gee Minims v. State, 10 Ohio St. (4 Dall.) 412 (1800) ; bk. 1 L. ed. 221 (1805). 888; Co. Litt. 15Gb; 2 Hale P. C. * See Dorgan r. State, 72 Ala. 173 208; 2 Haxvk P. C, c. 43, § 7. See (1882) ; Noles v. State, 24 Ala. 672 State V. Cadwell, 1 Jones (N. C.) L. (1854) ; People v. O'Neil, 61 Cal. 435 289 (1854) ; United States v. Black, (1882) ; People v. Harris, 61 Cal. 186 2 Cr. C. C. 195 (1819) ; United States (1882) ; People v. Clough, 59 Cal. V. Lambert, 2 Cr. C. C. 137 (1817) ; 438 (1881) ; Beery v. United States, United States v. Craig, 2 Cr. C. C. 36 2 Colo. 186 (1873) ; State v. Neuner, SEC. 367.] THE JURY. 401 In those cases where the accused may be convicted under the indictment of murder in the first degree, he is entitled to the number of peremptory challenges allowed in prosecutions for that offence ; and it is, therefore, no objection to the form of indictment prescribed by the statute,^ that it does not distinguish between the different degrees of murder.^ Sec. 367. Swearing the jury- — In all homicide cases the jury must be sworn in the presence of the accused ; ^ they must be sworn for the particular case to be tried,* and where joint defendants are awarded separate trials, after the jury has been sworn, they must be re-sworn.^ Where a defendant is indicted by several aliases and on the trial his true name is 49 Conn. 2Z2 (1881) ; State r. Chad- bourne, 74 INIe. 506 (1883) ; State v. Smith, 67 Me. 328 (1878) ; Stewart V. State, 50 jMiss. 587 (1874) ; Krem- ling V. Lallman, 16 Neb. 280 (1884) ; State V. McClear, 11 Nev. 39 (1876) ; State r. Drake, 59 N. H. 21 (1879); Fowler v. State, 8 Baxt. (Tenn.) 573 (1876) ; Smith v. State, 8 Lea (Tenn.) 386 (1881) ; Rounds v. State, 57 Wis. 45 (1883) ; s.c. 14 N. W. Rep. 865 ; United States v. Shackleford, 59 U. S. (18 How.) 588 (1855) ; bk. 15 L. ed. 495; United States v. Tallman, 10 Blatehf. C. C. 21 (1872) ; United States V. Cottingham, 2 Blatchf. C. C. 470 (1852) ; United States r. Reed, 2 Blatclif. C. C. 435 (1852); United States V. Coppersmith, 4 Fed. Rep. 198 (1880) ; s.c. 2 Flipp. C. C. 546 ; United States v. Devlin, 7 Int. Rev. Rec. 94; Ala. Code 1876, §§ 4879, 4880; Ark. Dig. 1874, §§ 1912, 1913; Cal. Pen. Code, § 1070 ; Colo. Laws 1879, p. 363 ; Del. Laws 1874, c. 133, § 16 ; Fla. Bush Dig., p. 576 ; 111. Rev. Stat. 1880, c. 38, § 432 ; Ind. 2 Rev. Stat. 1876, p. 393, §§ 81, 82 ; Iowa Miller's Rev. Code 1880, § 4413; Kan. Comp. Laws 1879, §§ 4, 690, 691; Ky. Bull Cr. Code, p. 41, §§ 203, 204 ; La. Rev. Stat. 1876, §§ 997, 998; Me. Rev. Stat. 1871, c. 1.34, § 12 ; Md. Rev. Code 1878, p. 563, § 18 ; Mass. Gen. Stat. 1860, c. 172, § 4; Acts 1875, c. 168, § 1 ; Mich. Comp. L. 1871, § 7951 ; Minn. Stat, at L. 1873, 26 p. 1055, § 231 ; IMiss. Rev. Code 1880, § 3076 ; Mo. Rev. Stat. 1879, §§ 1900, 1902; Neb. Gen. Stat. 826, § 467; Nev. Comp. L. 1873, § 1900 ; N. H. Gen. Stat. 1867, p. 493, §§ 8, 9 ; N. J. Rev. 1877, p. 280, § 71 ; p. 530, § 40 ; p. 531, § 41 ; N. Y. Rev. Stat. (6th ed.) p. 1029, § 9 cf seq. ; Code Cr. Proe. § 370; N. C. Batt. Rev., p. 338, § 77; Ohio Rev. Stat. 1880, §§ 7272, 7274, 7277; Oreg. Gen. Laws 1872 (Crim. Code) § 155 ; Pa. Bright Purd. Dig. §§ 39, 40 ; R. I. Gen. Stat. 1872, p. 434, § 34 ; S. C. Rev. St. 1873, p. 747, § 2; Tenn. St. 1871, §§ 4013, 4014; Tex. Rev. Stat. 1879 (Code Cr. Proc.) arts. 035, 652; Vt. Rev. Laws 1880, §§ 1653, 1654; Va. Code 1873, p. 1246, §§ 7, 9; West Va. Rev. St. 1879, c. 55, §§ 3, 4; Wis. Rev. St. 1878, § 4690; Federal Courts, 1 U. S. Stat, at L. 119, § 30; 5 U. S. Stat, at L. 282 ; 1 U. S. Rev. Stat. § 819. 1 As in Ala. Code, p. 698. 2 Noles V. State, 24 Ala. 672 (1854). 3 Dunn V. Commonwealth, 6 Pa. St. 384 (1847); Dougherty i'. Common- wealth, 69 Pa. St. 286 (1871) ; Younger V. State, 2 W. Va. 579 (1868). See Hopt V. People, 110 U. S. 574 (1884) ; bk. 28 L. ed. 262; s.c. 18 Cent. L. J. 269. * See Barney v. People, 22 III. 160 (1859). 5 Babcock v. People, 15 Hun (N. Y.) 347 (1878). 402 HOMICIDE. [chap. XX. discovered, it will not be error to swear the jury and wit- nesses by using the real name and all the aliases.^ Unless regulated by statute, it rests in the discretion of the court whether the jurors be sworn as they are individu- ally accepted,^ in groups,^ or all together when the jury is complete.* In the absence of any form of oath being prescribed by statute, in a prosecution for homicide, one substantially com- plying in form with the common law oath will be sufficient.^ Slight variation in the words, without the omission of any important part, is not reversible error.^ Thus in Colorado it has been held that where the record discloses an oath requir- ing the jury to " well and truly try the issue joined, and a true delivery make between the people and the state of Colorado and Si Minich, the defendant at the bar, and a true verdict render accordingly to the law and the evidence," is sufficient;" and the same was held in a Nevada case where 1 People V. Everhardt, 104 N. Y. 591 (1887); affirming 5 N. Y. Cr. Kep. 91. 2 People V. Carpenter, 102 N. Y. 238 (1886) ; affirming 38 Hun (N. Y.) 490. In this case the court say : " There is no rule of practice which requires the court to postpone the swearing of the jury until the drawing of tiie panel is wholly completed; and it is within the discretion of the trial court to de- termine the practice, and no impair- ment of the prisoner's legal right is made after he has been allowed a fair opportunity to interpose a peremptory challenge to a proposed juror, that he is foreclosed as to the further exercise of the right by the administration of the oath to the juror at any time after he has been examined and accepted." 3 O'Connor v. State, 9 Fla. 215 (I860) ; State v. Anderson, 4 Nev. 265 (1868). * People V. Reynolds, 16 Cal. 128 (1860) ; O'Connor v. State, 9 Fla. 216 (I860) ; Roberts v. State, 65 Ga. 430 (1880). But in Wisconsin it seems that a different doctrine prevails, it having been tliere held in liamb v. State, 30 Wis. 424 (1874), that it is essential that the jurors be sworn in a body. 5 Chitty Cr. L. 551. The form of oath at conmion law is as follows : " You shall well and truly try, and true deliverance make between our sovereign lord the king and the pris- oners at the bar, whom you shall have in charge, and a true verdict give according to the evidence. So help you God." « See Crist v. State, 21 Ala. 137 (1852); Baxter v. State, 15 Lea (Tenn.) 657 (1885) ; Fitzhugh v. State, 13 Lea (Tenn.) 258 (1884); Hartigan v. Territory, 1 Wash. Tr. 447 (1874). " Minich v. People, 8 Colo. 440 (1885) ; s.c. 9 Pac. Rep. 4. Tiie court say that the declaration that they were duly sworn implies that the oath was administered with the requisite formality and solemnity ; that the jurors in open court were required to hold up their liands and promise to perform the duties specified, there being an appropriate reference to the duty ; such as " in the presence of the everliving God," or " so lielp me God." Citing Kerr v. State, 30 Ohio St. 614 SEC. 368.] THE JURY. . 403 the form was simply " to well and truly try this cause, and a true verdict render, according to the law and the evidence." ^ In Tennessee an oath to " well and truly try the issues joined " lias been held sufficient.'-^ But where the form is prescribed by statute, it should be strictly followed.^ The record should show that the jury were sworn and the oath administered ; but where it is very manifest from the record that the jury were sworn to try the issues made by the charges in an indictment for murder, and by defendant's plea of not guilty, it is immaterial that the language used is not that ordinarily used.^ Thus in Crist v. State,^ which was a trial for murder, the record, at its commencement, did not state that the jury were sworn, but at the commencement of the record of the second day's proceedings, it stated that " there- upon also came the defendant and his c-ounsel, as also the counsel for the state, together with the jury that had been impanelled as aforesaid, and sworn as aforesaid, and the trial of said cause Avas resumed," &c., and afterwards stated that the jury '^ return into court, and on their oaths say," &c., and the court held that it sufficiently appeared from the record that the jury were sworn, and that the aj)pellate court would presume they were sworn before the testimony was heard. It is said by the supreme court of Tennessee in the case of Fitzhugh V. State ^ that where the record in a capital case recites that the jurors were sworn " to well and truly try the issues joined," and not containing the form of "well and truly try and due deliverance make," it is sufficient at least when first objected to in the appellate court. And a verdict in a capital case will not be set aside because the jury were sworn to accept the law as given by the court, this being their duty in any event." Sec. 368. Discharge of jurors. — It is sometimes proper for the court to discharge jurors during the trial; but the (1881) ; Bartlett v. State, 28 Ohio St. " State v. Rollins, 22 N. II. 528 669 (1876); Wareham v. State, 25 (1851). Ohio St. 601 (1874). * Baxter v. State, 15 Lea (Tenii.) 1 State V. Angelo, 18 Nev. 425 657 (1885). (1884) ; s.c. 4 Pac. Rep. 1080. ^ 21 Ala. 1:^7 (1852). 2 Fitzhugh V. State, 13 Lea (Tenn.) ^ 13 Lea (Tenn.) 258 (1884). 258 (1884). ■ Hartioan v. Territory, 1 Wash. Tr. 447 (1874). 404 HOMICIDE. [chap. XX. cause for wliicli a juror may be discharged sliould not be the result of the action of the court in derogation of the prisoner's right, but something over which the court had no control, as, for instance, sickness or other imperative necessity.^ Sec. 369. Separation — During trial. — The question whether the separation of the jury on the trial of an indict- ment for homicide is error, demanding a new trial, is one which largely depends upon the circumstance of each par- ticular instance, and no general rule can be laid down which can be followed in all cases ; but the weight of authority now is to the effect that it is not error for the court to allow the jury to separate prior to the final submission of the cause, under proper instructions as to their acts regarding the case on trial during their separation, unless it is shown that thereby something occurred by which the defendant was liable to be prejudiced ; ^ and the better opinion is that this 1 Bates ;,'. State, 19 Tex. 122 (1857). 2 See People v. Boniiey, 19 Cal. 426 (1861) ; Mat/ v. People, 8 Colo. 210 (1885) ; s.c. 6 Cr. L. Mag. 692 ; 6 Pac. Rep. 816; Elkin v. People, 5 Colo. 508 (1881) ; State v. Babcock, 1 Conn. 401 (1815) ; State v. Madoil, 12 Fla. 151 (1868) ; Kirk v. State, 73 Ga. 620 (1884) ; Neal v. State, 04 Ga. 272 (1879) ; Keins v. People, 30 111. 256 (1863) ; Hennincj v. Slate, 106 Ind. 386 (1885) ; .s.c. 55 Am. liep. 756; 6 N. E. Rep. 803; 7 N. E. Rep. 4 ; Jarrell v. State, 58 Ind. 293 (1877); Evans v. State, 7 Ind. 271 (1855); State V. Felter, 25 Iowa, 67 (1868); s.c. Law. Insan. 92 ; State v. Hornsby, 32 La. An. 1268 (1880) ; State v. Johnson, 30 La. An. 921 (1878); State V. Frank, 23 La. An. 213 (1871); State V. Evans, 21 La. An. 321 (18(U)); State V. Tucker, 10 La. An. 501 (1855); State V. Desmond, 5 La. An. 399 (1850) ; State v. Cro.sby, 4 La. An. 434 (1849) ; Slate v. Humsh,/, 8 Rob. (La.) 554 (1844); s.c. 41 Am. Dec. 305; State v. Ryan, 13 Minn. 370 (1808) ; Bilansky i: State, 3 Minn. 427 (1859) ; Coleman r. State, 59 Miss. 484 (1882) ; Territory v. Clay- ton, 8 Mont. 1 (1888) ; s.c. 19 Pac. Rep. 293; Stephens v. People, 19 N. Y. 553 (1859) ; People v. Mont- gomery, 13 Abb. (N. Y.) Pr. N. S. 207 (1871) ; Stephens v. People, 4 Park. Cr. Cas. (N. Y.) 396 (1859) ; State V. Baker, 63 N. C. 276 (1869); Moss V. Commonwealth, 107 Pa. St. 267 (1884) ; State r. Anderson, 2 Bail. (S. C.) L. 565 (1832) ; State v. Mckee, 1 Bail. (S. C.) L. 651 (1830) ; s.c. 21 Am. Dec. 499 ; Wilson v. State, 6 Baxt. (Tenn.) 206 (187.3); Odle r. State, 6 Baxt. (Tenn.) 159 (1873) ; Boyett r. State, 26 Tex. App. 689 (1886) ; s.c. 9 S. W. Rep. 275 ; Bailey V. State, 26 Tex. App. 706 (1887) ; s.c. 9 S. W. Rep. 270 ; Wilson v. State, 18 Tex. App. 576 (1885); Ogle v. State, 16 Tex. App. 361 (1885) ; West V. State, 7 Tex. App. 150 (1880) ; Cox V. State, 7 Tex. App. 1 (1880) ; Harti- gan ?'. Territory, 1 Wash. Tr. 447 (1874). Compare Berry v. State, 10 Ga. 511 (1851) ; Anonymous, 63 Me. 590 (1874); State v. Collins, 81 Mo. 652 (1884) ; Peiifer v. Commonwealth, 15 Pa. St. 408 (1850) ; s.c. 53 Am. Dec. 605 ; Cochran v. State, 7 Humph. (Tenn.) 544 (1847) ; Wiley v. State, SEC. 370.] THE JURY. 405 applies to capital cases,^ although it was formerly frequently maintained that it does not.^ And even where such sepa- ration is error, the defendant waives his right to object, unless he does so before verdict.^ But it has been held in some cases that the prosecution has the burden to show that nothing occurred whereby the defendant was likely to suffer prejudice;^ and still other courts have maintained, either under a statutory provision or otherwise, that the jury in capital cases can separate only before being duly impanelled, sworn, and charged with the case,^ unless in charge of an officer.^ Again, it is sometimes maintained that while the jury may be permitted to separate with the defendant's con- sent, it is error to allow a separation over his objection.'^ The jurors have no right, however, in capital cases at least, to separate without authority of the court.^ Sec. 370. Same — Permission to visit sick relative. — It has been said that in capital cases the trial judge may grant leave of absence to attend a sick relative,^ or for other 1 Swan (Tenn.) 256 (1851) ; Grisson V. State, 4 Tex. App. 374 (1879). Under the Missouri Revised Stat- ute of 1879, § 1909, permitting the separation of tlie jury "except in capital cases," it is held that a separa- tion in a capital case was ground for reversal of judgment, though there was no sTispicion of undue influence. State V. Collins, 81 Mo. 652 (1884). 1 Williams v. State, 48 Ala. 85 (1872) ; xMorgan v. State, 48 Ala. 65 (1872) ; Jumpertz v. People, 21 111. 375 (1859) ; Quinn v. State, 14 Ind. 589 (1860) ; State v. Frank, 23 La. An. 213 (1871) ; State v. Evans, 21 La. An. 321 (1809) ; Woods v. State, 43 Miss. 364 (1871) ; McLean v. State, 8 Mo. 1-53 (1843) ; Commonwealth r. Boyle, 9 Phila. (Pa.) 592 (1800) ; People r. Shafer, 1 Utah Tr. 260 (1875); State v. Godfrey, Bray t. (Vt.) 170 (1817). ^ Hartigan r. Territory, 1 Wash. Tr. 447 (1874). See i^ilansky v. State, 3 Minn. 427 (1859). 3Henning v. State, lOG Ind. 386 (1885) ; s.c. 55 Am. Rep. 756 ; 6 N. E. Rep. 803 ; 7 N. E. Rep. 4. * Monroe v. State, 5 Ga. 85 (1848); Moss r. Commonwealth, 107 Pa. St. 267 (1884) ; Keenan v. State, 8 Wis. 132 (1857). & State V. Burns, 33 Mo. 483 ; Peif- fer V. Commonwealth, 15 Pa. St. 468 (1850). ^ Grisson r. State, 4 Tex. App. 374 (1879). ■^ Anderson v. State, 28 Ind. 22 (1867) ; Quinn v. State, 14 Ind, 589 (I860). 8 Russell V. People, 44 111. 508 (1807). 9 In Coleman v. State, 59 Miss. 484 (1882), permission was given to at- tend a dying brother ; and in Boyett V. State, 20 Tex. App. 689 (1880) ; s.c. 9 S. W. Rep. 275, a juror was per- mitted, during a murder trial, to go home to see his sick wife, accompanied by a deputy sheriff, with the consent of counsel, and it was there held that the fact that he remained in the room with his wife and little girl only for 406 HOMICIDE. [chap. XX. purposes. Thus in Moss v. Commonwealth ^ one of the jurors was absent for two days during an adjournment, with the permission of the court, and in tlie custody of a sworn officer, and this was held to be no ground for a new trial. But where absence is granted on condition that the juror shall be attended by the sheriff, a breach of the condition will vitiate the verdict.^ It is thought that physical necessity will justify a short absence where the interest and rights of the defendant are in no way prejudiced thereby. Thus in Territory v. Clayton^ it was held that it is not sufficient cause for granting a new trial that one of the jurors, who was suffering from- diarrhoea, was called suddenly to the privy, while the bailiff was absent, so that he could not notify him, the juror having returned as soon as possible to the jury room, and there being no claim that he saw or spoke to any one. Sec. 371. Same — Durins;- meals, etc. — The trial jurors in a homicide case should be kept together and by themselves while going to, coming from, and at their meals. Thus in the case of Odle v. State * a verdict was held vitiated by the fact that while a trial for murder was in progress, part of the jurors were allowed to sit at their meals with three of the witnesses for the state, in a distinct I'oom from that where sat the officer in charge and the other jurors. But it has been held otherwise as to the mere fact that the jury took their meals at the house of a person who aided the prosecu- tion in selecting the jury, no tampering being shown.^ In State V. Baker,*^ where, during a trial for murder, the jury were put in charge of an officer to be kept together, with permission to eat their dinner, and one of the jurors was allowed " to pass by or near a number of persons and eat about thirty minutes ; that he coti- no one concerning^ the trial (lurin<; versed witii no one hut his wife; and the time of his absence. Wilson v. tliat the only reference to the trial State, 18 Tex. App. 57G. was wlien, in answer to her question, ^ 8 Mont. 1 (1888) ; s.c. 19 Pac. he stated that it would continue sev- Rep. '203 (1885). eral days, is no ground for setting ■* 6 Baxt. (Tenn.) 159 (1873). aside the verdict. ■'' Wilson v. State, (5 Baxt. (Tenn.) 1 107 Pii. St. 267 (1884). 200 (187:^). •-' .'\nd this is the case although the « Go N. C. 27G (1869). juror deposed that he conversed witli SEC. 374.] THE JURY. iCTl his dinner a short distance from the other jurors, but he conversed with no one," it was hekl that this was nothing of which the prisoner had any right to complain. And it has been said that a new trial will not necessarily be granted because two jurors, during the trial, went into a neighboring hotel and took a drink, no harm being shown to have resulted.^ Sec. 372. Same — Separation after retiring. — After jurors have retired to consider the case they must not sepa- rate until they have rendered their verdict.^ This rule may, however, have its exceptions. Thus a separation of a jury, caused by their discharge after returning a verdict which was informal, they being immediately recalled, and the ver- dict corrected, only thirty seconds elapsing until tlieir recall, in which time only a few had broken ranks and removed from where they stood when they were discharged, will not vitiate the verdict.^ Sec. 373. Misconduct by or relating^ to the jury during trial. — The jury in a murder case, especiall}' if the charge be for a capital offence, should always be in charge of a sworn officer, when not in the presence of the court.* But in the case of Trim v. Commonwealth,^ during a trial for murder, a portion of the jurors were locked in a room with an unsworn deputy sheriff, during the temporary absence of the high sheriff, and this was held not to be such misconduct of the jury as would entitle the prisoner to a new trial. Sec. 374. Same — As to officer in charge. — It seems that the fact that the officer in charge of a jury in a homicide case may be interested as a witness, is not, of itself, sufficient to preclude him from having charge of the jury. Thus in Peo- ple V. Coughlin,'^ which was the trial of an indictment for homicide, the sheriff in charge of the jury during their de- 1 May r. People, 8 Colo. 210 (1885); (1860); Trim v. Commonwealth, 18 8.C. 6 Cr. L. Mag. 692; 6 Pac. Rep. Gratt. (Va.) 983 (1868). See Kirk v. 816. State, 73 Ga. 620 (1884); Dumas v. •■2 See Maher v. State, 3 Minn. 444 State, 63 Ga. 600 (1879). (1859). 3 18 Gratt. (Va.) 983 (U 3 Boj'ett V. State, 26 Tex. App. 689 « (55 Mich. 704 (1887) ; s.c. 32 N. (1886) ; s.c. 9. S. W. Rep. 275. W. Rep. 905. * Gibbons v. People, 23 111. 518 408 HOMICIDE. [chap. XX. liberations had entered the complaint on which the defendant was arrested, and had also testified as a witness for the peo- ple ; but this is not thought ground for a new trial. The officer must hold no communication whatever with any of the jurors concerning the case on trial unless author- ized to do so by law; he must lodge them at night where there is no danger that they will be tampered with or spoken to concerning the case ; ^ he must take general care that noth- ing occurs whereby they may be prejudiced in any way con- cerning the case on trial ; and he has no right to allow them to exercise any unusual rights or privileges without permis- sion of the court.2 Sec. 375. Same — Holding- conimunication with outside parties. — It has been said that during the trial the jury must not be permitted to hold communications with outside parties by letter^ or otherwise* Thus in State v. Robinson,^ during 1 It is said in Dumas v. State, 63 Ga. 600 (1870), that a new trial will not be granted to a prisoner convicted of murder, because the jury were lodged at night in the house of a brother of one wlio had furnished money and otiierwise aided in the prosecution, said brother being the jailer, and having had no communica- tion with the jury, wlio were in charge of a bailiff. Neither is it ground for reversal that the bailiff in charge of the jury slept in the room with them one night during the trial, nothing further appearing to defendant's prej- udice. Kirk t'. State, 73 Ga. 620 (1884). 2 See People v. Gray, 61 Cal. 164 (1882); s.c. 44 Am. Rep. 549; Jones V. People, 6 Colo. 452 (1882) ; s.c. 45 Am. Rep. 526. 3 State V. Robinson, 20 W. Va. 713 (1882). ■* See McCreary !•. Commonwealth, 2!) Pa. St. 323 (1857) ; Crocker v. Hoff- man, 48 Ind. 207 (1874). Tiie judge should, on each adjourn- ment, admonish the jury that they are not to converse among themselves on any subject connected with the trial, or to allow any one else to talk to or with tliem or in their hearing, upon any subject connected with the trial, or to form or express any opinion until the case is finally sub- mitted to them. Should tlie judge fail to do this, the defendant must request it to be done, if desired ; an omission without objection will not be ground for a new trial. Peo- ple v. Draper, 28 Hun. (N. Y.) 1 (1882). In the case of State v. Anderson, 4 Nev. 265^1868), during the progress of a murder trial, and while the court had taken a recess, the jury were in the court-house in charge of the slier- iff, and one of the jurymen, standing near a window, saw a newspaper in the hands of a person near the win- dow on the outside of the court-house, and asked him for it. The party ad- dressed handed up the paper to the juror, saying no more tlian "You are welcome." The juror glanced over the paper and then handed it back. Tiie court held that this was not such misconduct in the juror as 6 20 W. Va. 713 (1882). SEC. 376.] THE JURY. 409 the trial of a capital case, the jury were allowed to receive sealed letters. The court held that this afforded' ground sufficient for setting aside a verdict of guilty of murder in the first degree, although there was no reason for supposing that the letters contained anything likely to influence the verdict. Some cases hold, however, that the accused cannot, as a matter of right, demand that the jurors he restricted in their communications beyond the subject of the trial, all restric- tions beyond this resting in the sound discretion of the trial judge.i Sec. 376. Same — Attending church. — It is thought that attending church is not such misconduct on the part of the jury as will vitiate their verdict or be grounds for awarding a new trial, even though the minister delivers a discourse on homicide, or addresses the jury directly regarding the case in which they are impounded, Avhere it does not plainly appear that their verdict was affected and the defendant prejudiced thereby .^ Thus in a recent case,^ where the trial court allowed the jury, during an adjournment of the trial of an indictment for murder, to attend church, where they heard a sermon on the text, " Thou shalt not kill," the appellate court refused to interfere with a verdict of guilty, it not being alleged that the jury were influenced by such sermon.^ In the case of Prooper v. Reg.,^ during the prog- ress of a trial for felony, the jury attended church, in charcre of a constable, and at the close of the service the clergyman directly addressed them, remarking on the case would entitle the defendant to a new amined the skull being known to the trial. prisoner's counsel before they entered In Wilson v. People, 4 Park. Cr. upon the defence. Gas. (X. Y.) G19 (1859). is said i See State v. Cucuel, 31 N. J. L. that it is no reason for setting aside a (2 Vr.) 249 (1865). conviction of murder that, during a - Alexander v. Commonwealth, 105 recess, one of the jurors examined Pa. St. 1 (1884) ; s.c. 5 Cr. L. Mag. a piece of the skull of the person 829; Prooper v. Reg., 25 Can. L. J. alleged to have been murdered, which (Can. S. C.) 261 (1888). was lying on the district attorney's ^ i05 Pa. St. 1 (1884) ; s.c. 5 Cr. table, the circumstances of the case L. Mag. 829. being such as to show that the juror * See post, § -377. could not have been misled thereby, ^ 25 Can. L. J. (Can. S. C) 261 and the fact of the juror having ex- (1888). 410 HOMICIDE. [chap. XX. of one Millman, who had been executed for murder in Prince Edward Island, and told them that if they had the slightest doubt of the guilt of the prisoner they were trying they should temper justice with equity. The prisontjr was convicted. The court held, affirming the judgment of the Court of Crown Cases Reserved for Nova Scotia, that, al- though the remarks of the clergyman were highly improper, it could not be said that the jury were influenced by them so as to affect their verdict. Sec. 377. Same — Use of liquor by jury. — It has been said^ that the jury may not order for themselves intoxicating liquors without the knowledge and permission of the trial judge, some of the cases going to the extent of holding that the use of intoxicating liquors to any extent vitiates the ver- dict.2 These cases all hold that the courts will not inquire whether any juror was affected by what he drank or not ; that the only sure safeguard to the purity and the correctness of the verdict is that no drinking shall be allowed.^ But the better opinion is thought to be that a conviction, even in a capital case, will not be vitiated by the moderate use, on the part of the jurors, of spirituous and intoxicating liquors, unless such drinking affected the verdict, or the liquors were sup- 1 In People v. Gray, 01 Cal. 164 wood r. People, 3 Park. Cr. Cas. (18S2) ; s.c. 4-4 Am. Rep. 549, during (N. Y.) 43 (1855), wliere it was said a murder trial, lasting eleven days, to rest on mere dicta of the majority large quantities of beer, wine, and of tlie judges in People v. Douglass, whiskey were ordered by tlie jury, at and to be in direct conflict with Pi'o- their own expense, and consumed by pie v. McKay, 18 Johns (N. Y.) 212 them, mostly before the submission, (1820). This opinion of Selden, J., but some afterwards, without permis- was itself denied in Stepliens v. Pco- aion of tlie court, and without the pie, 4 Park. Cr. Cas. (N. Y.) 503 knowledge of the defendant. It did (1859) ; s.c. 19 N. Y. 560, and the doc- not clearly appear that any juror was trine of the principal case recognized intoxicated, but the conviction was as sound. set aside. ^ People, v. Grai/, 01 Cal. 104 ri882) ; ^ People V. Grai/, 61 Cal. 104 (1882) ; s.c. 44 Am. T?ep! 540, citing Pelham s.c. 44 Am. Rep. 549; People v. Donii- r. Page, 6 Ark. 535 (1840) ; Gregg v. lass, 4 Cow, (N. Y.) 26 (1825) ; s.c. IMcDaniel, 4 Harr. (Del.) 307 (1845) ; 15 Am. Dec. 332, overruled by Wil- Davis v. State, 35 Ind. 490 (1871); son V. Abrahams, 1 Hill. (N. Y.) 207 s.c. 9 Am. Rep. 700; Ryan v. Harrow, (1841). See Ryan v. Harrow, 27 Iowa, 27 Iowa, 494 (1869) ; s.c. 1 Am. Rep. 494 (1809); s.c. 1 Am. Rep. 302; State .302; State v. Baldy, 17 Iowa, 39 V. Baldy, 17 Iowa, .39 (1864) ; .Jones (1864) ; Leighton v. Sargent, 31 N. H. V. State, 13 Tex. 168 (1854). 119 (1855) ; State v. BuUard, 16 N. H. Tliis doctrine was denied in East- 139 (1844) ; Brant v. Fowler, 7 Cow. SEC. 378.] THE JURY. 411 plied l)y an interested party.^ In Jones v. People,''^ the supreme court of Colorado say that, such misconduct on th» part of the jury certainly deserves condemnation and punish- ment, and the jurors who procured and drank the liquor in this case were severally censured, and likewise fined by the court ; but this is a matter entirely apart from the question of setting aside the verdict when its fairness is not impeached. Sec. 378. Same — Discretion of trial judge. — The trial court has a large discretion as to the a^its of the jury during the trial, which, when exercised beforehand, will not be inter- fered with, unless abused. And where it does not appear that the acts of the court complained of, have in any way affected the jury in the full and impartial discharge of their duties in trying the case, and rendering a just and true ver- dict therein, there is no sufficient cause for holding the verdict thereby vitiated, or for that reason setting it aside .^ Thus it is said in Jones v. People,* that a conviction for murder will not be set aside because, with the permission of the court, the jury attended the theatre in a body, in charge of an officer. In the case of Alexander v. Commonwealth,^ the trial court allowed the jury, during the adjournment of a murder trial, to attend church and hear a sermon on the (N. Y.) 502 (1827) ; People v. Dong- v. Hanm, 38 N. H. 108 (1859); State lass, 4 Cow. (N. Y.) 36 (1825); s.c. v. Cucuel, 31 N. J. L. (2 Vr.) 250 15 Am. Dec. 332; Jones v. State, 13 (18(55); Wijson v. Abrahams, 1 Hill Tex. 168 (1854). (N. Y.) 207*(1841) ; State v. Sparrow, 1 See Kee v. State, 28 Ark. 165 3 Murph. (N. C.) 487 (1819); Howe (1873); Jones v. People, 6 Colo. 452 v. State, 11 Humph. (Tenn.) 491 (1882); s.c. 45 Am. Rep. 526 ; ^Vest- (1851); Stone r. State, 4 Humph, moreland v. State, 45 Ga. 282 (1872) ; (Tenn.) 27 (1843) ; Thompson v. Davis V. People, 19 Ili. 74 (1857); Commonwealth, 8 Gratt. (Va.) 637 Slate \. Bruce, 48 Iowa, 530 (1878); (1851); Coleman v. Moody, 4 Hen. s.c. 30 Am. Ilep. 403; Van Buskirk & Munf. (Va.) 1 (1809); Roman V. Daugherty, 44 Iowa, 42 (1876); r. State, 41 Wis. 312(1877); United ^S'/nte V. il/o/7>/i//, 33 Iowa, 270 (1871); States v. Gibert, 2 Sumn. C. C. 83 s.c. 11 Am. Rep. 122; Purinton v. (1834); 3 Whart. Cr. L. § 3330. Humphreys, 6 Me. 379 (1830); Com- ^o Colo. 452 (1882); s.c. 45 Am. monwcaltii v. Roby, 29 Mass. (12 Rep. 526. Pick.) 496 (1832) ; Pope v. State, 36 ^ jones v. People, 6 Colo. 452 Miss. 121 (1858) ; State v. Baber, 74 (1882) ; s.c. 45 Am. Rep. 526. Mo. 292 (1881); s.c. 41 Am. Rep. ■* 6 Colo. 452 (1882); s.c. 45 Am. 314 ; State v. West, 69 Mo. 401 (1879) ; Rep. 526. s.c. 33 Am. Rep. 506; State v. Upton, '^ 105 Pa. St. 1 (1884) ; s.c. 5 Cr. 20 Mo. 397 (1855) ; Richardson v. L. Mag. 829. Jones, 1 Nev. 405 (1865) ; Gilmanton 412 HOMICIDE. [chap. XX. text, " Thou shalt not kill." The court below refused to igrant a new trial for the prisoner because of the sermon lis- tened to by the jury and charged to have prejudiced them, and the defendant appealed. The appellate court held that the act was within the discretion of the trial court and refused to ffrant a new trial. Sec. 379. Same — Conduct and words of counsel. — The counsel in a homicide case should not say or do any- thing- not in the line of their duties, which might have the effect of influencing the jury. In the case of Thomas v. State 1 offers by the district attorney, and also by counsel for the accused, made in presence of the jurors, to contribute to their sustenance during the trial, were said to be highly improper, but not grounds for a reversal of a judgment of conviction on the trial of an indictment for murder. Sec. 380. Same — Waiver of irregularities. — One on trial for a homicide, like any other defendant, will be deemed to have waived any irregularity in the conduct of the jury which he perceives but neglects to have remedied ia proper time. Thus where the prisoner's counsel stated privately to the court that it was not best to say anything about a juror's reading a newspaper report of the homicide, as it might, by giving the article undue prominence, do more harm than good, it was held that the irregularity was waived.^ Sec. 381. Misconduct by or relating to the jury after retiring. — Tlie only duty of the jury, after they retire, stated in general terms, is to confer together touching the guilt or innocence of the defendant in relation to the homi- cide for which he is on trial, until they arrive at a unanimous conclusion, or until it is manifest that they cannot agree. They should all consult together, each in the hearing of all the others ; and secrecy between some of them, from the others, is improper.^ They should confer with no outside person except the officer in charge ; nor should any person except him be allowed in their presence ; * and they should 1 61 Miss. GO (1883). •» But a verdict of guilty of murder 2 Bulliner v. Teople, 95 III. 394 will not be set aside because a druiik- (1880). en man was found in the jury-room 2 Monroe v. State, 5 Ga. 85 (1848). asleep, he having been at once ejected. SEC. 381.] THE JURY. 413 not consult even with him upon any question whatever rekitecl to the case under their consideration.^ They shouhl not be aUowed to communicate with the judge, except in open court and in the prisoner's presence;^ but a verdict will not be set aside merely because the judge, as he passed the jur3--room, said that he was going home, and that if they agreed they could send for him, it being apparent that the communication could not have done liarm.^ Neither is it proper for the jury to receive or read law books,^ or accounts or records of other trials or cases.* Thus in a case where the defence was moral insanity, and insanity caused by intoxication, the jury, while together, were allowed to receive newspapers containing accounts of the Guiteau trial, and of the testimon}- of one of the expert physicians for the government, expressing his disbelief in moral insanity and dipsomania, and it was held that this afforded ground for setting aside the verdict.^ Nor should the jury be per- mitted to examine things not in evidence,® or places acces- sible to them connected with the homicide. But it has been said that a verdict of murder in the second degree will not be set aside because the jury examined the room in which the homicide was committed, it having been committed in and it being certain that his presence ^ Jones v. State, 89 Ind. 82 (1883). caused no liariii. State v. Gould, 90 But see Graves v. State, 63 Ga. 740 N. C. 658 (1884). (1879); State v. Harris, 34 La. An. 1 State v. Brown, 22 Kan. 222 118 (1882); Gandolfo r. State, 11 (1879) ; Wilson 1-. People, 4 Park. Cr. Ohio St. 114 (18(30). See post, Cas. (N. Y.) 019 (1859); People v. §381. Hartung, 4 Park. Cr. Cas. (N. Y.) * Jones v. State, 89 Ind. 82 (1883) ; 259 (1859). But such an irregularity State v. Robinson, 20 W. Va. 713 will not vitiate a conviction if it ap- (1882) ; s.c. 43 Am. Rep. 799. See pears beyond all reasonable doubt that Graves v. State, 63 Ga. 740 (1879); no injury has resulted to the prisoner State ;•. Harris, 34 La. An. 118 (1882) ; therefrom. Wilson ?•. People, 4 Park. Gandolfo v. State, 11 Ohio St. 114 Cr. Cas. (X.Y.) 619 (1859). However, (1860). abailiff'sassistingthe jury to decipher ^ State r. Robinson, 20 W. Va. 713 and read the instructions, although at (1882) ; s.c. 43 Am. Rep. 799. the request of the jurors, is ground for '^ Yates r. People, 38 III. 527 (1865) ; setting aside a verdict of guilty of Wilson v. People, 4 Park. Cr. Cas. murder. State i\ Brown, 22 Kan. 222 (N. Y.) 619 (1859) ; People r. Har- (1879). tung, 4 Park. Cr. Cas. (N. Y.) 256 2 Cartwrisjht v. State, 12 Lea (1859). See Titus v. State, 49 N. J, (Tenn.) 620 (1883). L. (20 Vr.) 36 (1886) ; s.c. 9 Cr. K Mag. 353. See post, § 383. 414 HOMicroE. [chap. xx. the court-house, it not appearing that they were influenced thereby.^ Sec. 382. Same — Law books in jury room. — Where upon the trial of a capital case, in which a verdict of guilty was rendered, it appeared that the jury had with tliem in the jury room the volume of the oj^inions of the supreme court containing the report of a previous trial of the case, a new trial was granted, it not appearing from affidavits of the jurors, or otherwise, that they had not read tlie report of the case printed tlierein.^ But it is said in tlie case of State v. Harris ^ that a new trial will not be granted to one convicted of manslaughter, because there were law books in the jury room, and because the jury accidentally had with them the written testimony taken at the inquest, it not appearing that the evidence or the books were read, or that any harm resulted to the prisoner from the fact. And a new trial will not be granted i,n a murder case because tlie jury, after they had agreed on their vertlict, procured a copy of the code for the purpose of putting their verdict in proper form.^ It has been said that a verdict of murder in the second degree will not be set aside because the jury read from the penal code, it not appearing that they were influenced in their verdict thereby.^ And wliere the judge presiding at the trial of a prisoner for murder, sent to the jury, on their request, in the absence of the prisoner, a copy of the statutes of the state, calling their attention to the three sections relating to homi- cide, it was held to be an exercise of discretion on the part of the judge which did not prejudice the prisoner, and fur- nished no ground for the reversal of judgment.^ Sec. 383. Same — Examining' thing's not in evidence. — In Yates v. People,''' upon the trial of an indictment charging murder, it was held to be sufficient cause for a new trial, that after the jury had retired, a pistol, that had been shown to them on the trial, but not identified as the one by means of I INIcDonald v. State, 15 Tex. App. ^ McDonald v. State, 15 Tex. App. 493 (1884). 493 (1884). ••2 Jones 1-. State, 89 Ind. 82 (1883). « Gandolfo v. State, 11 Ohio St. 3 34 La. An. 118 (1882). 114 (1800). * Graves v. State, 63 Ga. 740 " 38 111. 527 (18G5). (1879). SEC. 383.] THE JURY. 415 which the deceased came to his death, was sent to them with- out the prisoner's consent ; and that they by experimenting therewith, were influenced in determining the guilt of the prisoner. But in the case of Titus v. State,^ after the jury in a trial for murder had retired to consider their verdict, certain of them sent for a magnifying glass, and with it com- })ared certain wood fibres, that were adhering to the clothes of the murdered girl, with those of a wooden platform that had been exhibited at the trial, and upon which, the state contended, the deceased liad been thrown down, it appearing that the entire identity of appeai'ance of fibres was an undis- puted fact, the court held that the verdict would not be dis- turbed for this irregularity. 1 49 N. J. L. (20 Vr.) .3G (1886) ; s.c. 9 Cr. L. Mag. 353. CHAPTER XXI. EVIDENCE — PRELIMINARY. Sec. 384. Witnesses. Sec. 385. Same — Separating witnesses. Sec. 386. Same — Number of witnesses. Sec. 387. Same — Competency of witnesses. Sec. 388. Same — Husband and wife. Sec. 389. Same — Co-defendant whose indictment nollied. Sec. 390. Same — Medical e.xperts. Site. 391. Incriminating testimony. Sec. 392. Determining the competency of evidence. Sec. 393. Order of proof. Sec. 384. Witnesses. — The general rules relating to wit- nesses in criminal cases — their competency, credibility, the order of their testimony, and the number allowed to testify to the same fact — are applicable in trials for homicide. Per- sons charged with crimes have, in most jurisdictions, a right, guaranteed by constitutional provision, to be confronted by witnesses against them, as well as to have compulsory process for witnesses to testify in their favor, and, therefore, proof of their guilt is of no avail, unless adduced in their immediate presence, and in a judicial inquiry into the charge against them ; but this right may be waived by one charged with hom- icide, and he may agree that depositions shall be received instead.! One indicted for a homicide is usually entitled to a list (either indorsed upon the indictment or otherwise) of the witnesses to appear against him. This is either provided by statute, or it is the general practice ; ^ but it is not always so.'^ The prosecution need not, however, adhere strictly to such list in examining its witnesses, and the prosecuting offi- cer may exercise his own discretion ; he may examine all 1 People (,'. Murray, 52 Midi. 288 ^ See State v. Nugent, 71 Mo. 130 (1883). (1879). 2 See 1 Bish. Cr. L. (3d ed.) § 950. 416 SEC. 386.] EVIDENCE — PRKLIMINARY. 417 material witnesses, whether their names are upon the list or not, or he may omit to call and examine witnesses whose names are upon the list.^ Sec. 385. Same — Separating witnesses. — The rule of practice that witnesses may be separated and excluded from the court-room is applicable to trials for homicide, generally at the discretion of the court, as in other felonies,^ but at the option of the parties, or either of them.^ Where either party exercises his option and requires a separation of the witnesses, it is no abuse of discretion to allow a part of the witnesses to remain in court to assist in the prosecution or defence.* The object of this proceeding is for the purpose of promot- ing the credibility of the witnesses, and, therefore, its omission can affect their credibility only ; ^ and while excluded from the court-room they are not necessarily to be treated as if they were jurors, and kept from all communication concern- ing the case on trial. Neither will the court order an oflfieer, having charge of witnesses Avho have been excluded from the court-room until they should severally be called to testify, to prohibit them from reading the newspaper accounts of the evidence in the case.^ Sec. 386. Same — Number of witnesses. — It is some- times proper for the court to prevent the repetition, by many different witnesses, of the same fact; but this is largely a matter of discretion. Thus on the trial of an indictment for murder it appeared that the deceased was privately and hastily buried on the day next after the killing. The body was afterwards disinterred to ascertain whether any wounds appeared upon it. Two of the witnesses who were present on that occasion were permitted to testify as to what they had seen ; and two others, one of them a physician, the only medical witness that testified, gave evidence as to the con- dition of the body, and the nature and character of the 'State V. C.nin, 20 W. Va. 079 •" See flellems r. State, 22 Ark. 207 (1882). See Morrow v. State, 57 (18fiO). Mis.s. 8.S6 (1880). 4 Tliomas v. State, 27 Ga. 287 2 Thomas v. State, 27 Ga. 287 (18r)9). (1859). See Hellems v. State, 22 ^ Commonwealth v. Hersey, 84 Ark. 207 (1860). Mass. (2 Allen) 173 (1861). 27 418 HOMICIDE. [chap. XXI. wounds upon it. It was held on appeal that the trial court did not err in thus permitting- four witnesses to prove the same harrowing state of facts.^ Sec. 387. Same — Competency of witnesses. — Any per- son whose disqualification is not shown is a competent witness either for or against the person charged with the homicide. Persons who are jointly indicted with the defendant are not generally competent to testify in his favor, even when a sepa- rate trial is had, because the mere severance for the purpose of a trial does not make such joint defendant a competent witness for the state ; ^ and where the indictment is nollied, that he may testify for the state, the verdict of conviction will be set aside .^ But it is said in the recent case of State V. Walker,* that j>ersons who are jointly indicted witli the de- fendant, one of whom has been acquitted, and a nolle prosequi entered as to the others, are competent, though another joint indictment is pending against them and the defendant for the murder of another man, at the same time, and in the same transaction, as that for which the defendant is on trial. In some states, however, the rule is otherwise, unless a con- spiracy is charged.^ Any person who is in possession of information material to the inquiry is a competent witness in the first instance, and his exclusion is error. Thus in the case of Reg. v. Brown,^ 1 McConnell v. State, 22 Tex. App. not apply where, altlioufrh tlie indict- 354 (1886) ; s.c. 58 Am. Rep. 047 ; 'o nient charges a conspiracy, tliere is S. W. Rep. 699. no evidence to sustain the charge. 2 See post, § 889. In such a case the accused is entitled 3 Stater. Walkei', 98 Mo. 95 (1888); to the testimony of the person jointly s.c. 9 S. W. Rep. 646 ; State v. Chyo indicted with him. But evidence of Chiagk, 92 Mo. 395 (1887) ; .s.c. 4 threats made by such persons are in- S.'W. Rep. 704. competent against the other. Wright 4 98 Mo. 95 (1888) ; s.c. 9 S. W. v. Commonwealtii, 85 Ky. 123 (1887); Rep. 646. s.c. 9 Or. L. Mag. 331 ; 2 S. W. Rep. ^ Wright r. Commonwealth, 85 Ky. 904. 123(1887); .s.c. 9 Or. L. Mag. 331; In People r. Sweeney, 41 Hun 2 S. W. Rep. 904 ; People r. Sweeney, (N. Y.) 332 (1886), A and B were 41 Hun (N. Y.) 332 (1886). " jointly indicted for murder. On B's Kentucky Criminal Code, section trial \ was as acces.sible to tlie prose- 234, providing that if two or more cution as to B. Held that no pre- persons be jointly indicted for the sumptiojis against B were admissible same offence, each shall be a compe- by reason of the fact that B did not tent witness for the others, unless the make A a witness. indictment charges a conspiracy, does •> 21 Up. Can. Q. B. 330 (1860). SEC. 390.] EVIDENCE — PRELIMINARY. 419 where the defendant Avas on trial for the murder of. one H., the principal witness for the crown stated that the crime was committed on the first of December, 1859, on the bridge over the river Don, and that the prisoner and one S., who had been previously tried and acquitted, threw H. over the parapet of the bridge into the river. The counsel for the prisoner then proposed to prove by one D. that S. was at his place, fifty miles off, on the evening, but the trial judge re- jected the evidence, laying that S. might be called, and if contradicted, might be confirmed b}' other testimony. S. was called, and swore that he was not present at the time, but he not being contradicted, D. was not examined. On appeal it was held that the presence of S. was a fact material to the inquiry, and that D. therefore should have been admitted when tendered; and, the prisoner having been found guilty, a new trial was ordered. Sec. 388. Same — Husband and wife. — At common law a husband and wife are not competent to testify for or against each other ; but the rule has frequently been changed by statute.^ Sec. 389. Same — Co-defendant whose indictment nol- lied. — It is sometimes the practice to discontinue the prose- cution of one defendant, if he will testify against others indicted for the same crime, and this is within the discretion of the prosecuting officer, with the consent of the court ; but this must not be done under circumstances which are liable to induce falsehood and injury in the defendant. Thus in the case of Harris v. State ^ several defendants were indicted for murder, and the prosecuting attorney told them that he would enter a nolle prosequi as to the defendant whose state- ment would be of most value to the prosecution, and the court held that a conviction obtained on evidence thus induced could not be sustained. Sec. 390. Same — Medical experts. — The general rules relating to experts, and particularly to medical experts, are applicable in the trial of an indictment for homicide. When 1 See 1 Greenl. Ev. (14th ed.) 2 i5 Tex. App. 629 (1884). § 334, et seq. 420 HOMICIDE. [chap. XXI. the defence is mental irresponsibility, physicians who were sent to the jail to examine the accused are properly allowed to testify for the prosecution as to his mental capacity. Their visit neither gave rise to the relation of patient and physician, nor resulted in compelling the accused to give evidence against himself.^ In the case of Proofer v. Reg.,^ on a trial for murder by shooting, a witness called as a medical expert stated to the crown prosecutor that " there were inditla in medical science by which it could be said at what distance from the human body the gun was fired." Tliis was objected to, but the witness was not cross-examined as to the grounds of his statement. He then described what he found on examining the body of the murdered man, and stated the maximum and minimum distances at which the shot must have been fired. The court held that the opening statement of the witness established his right to speak as a medical expert, and not having been shown by cross-examination, or by other medical evidence, that liis statement was untrue, his evidence was properly admitted. Sec. 391. incriminating' testimony. — In prosecutions for homicide, as well as in other cases, a witness is not obliged to reply to any question, the answer to which, in his judgment, may criminate himself.^ Sec. 392. Determining the competency of evidence. — It is sometimes necessary for the court to hear proof from which to determine the competency of evidence offered touch- ing the meiits of the charge under consideration, which evi- dence usually consists of dying declarations of the deceased;* 1 People V. Kemmler, 110 N. Y. Bmiielv. State,WMiss.(SS. !.. J. 4'!4. this A shot and killed one C, who '^ 7 Can. S. C. o07. SEC. 408.] EVII)I:NCE COMPETENCE. 435 November, 1881. The immediate cause of her death was acute inflammation of the liver, which the medical testimony proved might be occasioned by a blow or a fall against a hard substance. About three weeks before her death (on 17th of October preceding) the prisoner had knocked his wife down with a bottle ; she fell against a door, and remained on the floor insensible for some time ; she was confined to her bed soon afterwards and never recovered. Evidence was given of frequent acts of violence committed by the prisoner upon his wife within a year of her death, by knocking her down and kicking her in the side. The following questions were reserved ; viz. whether the evidence of assaults and violence committed by the prisoner on the deceased, prior to the 10th of November or the 17th October, 1881, was properly received, and whether there was any evidence to leave to the jury to sustain the charge in the first count of the indictment? The court held, affirming the judgment of the Supreme Court of New Brunswick, that the evidence was properly received and that there was evidence to submit to the jury that the disease which caused her death was produced by the injuries inflicted by the prisoner. Sec. 407. Provocation. — Where the evidence opens the (piestion of intent to kill, it is competent to prove, for the purpose of reducing the homicide to manslaughter, that the prisoner in attacking the deceased, acted from recent provo- cation, likely to induce the defendant to chastise the deceased.^ Sec. 408. Acts inconsistent with declarations. — On the trial of an indictment for murder, it appeared that the ac- cused had slain the deceased in a fight, at night, without any eyewitness of the encounter. The evidence on the part of the state tended to show that two days before the fight the deceased had threatened to arrest the defendant for living in adultery with his daughter, and had insisted on his marrying her. The court said that the defendant might show that the deceased was opposed to the defendant's marrying his daugh- ter, and was himself living in adultery with her, although she was his daughter.^ 1 People V. Lewis, 3 Abb. App. - Walker v. State, 63 Ala. 105 Dec. (N. Y.) 535 (1867). (1879). 436 HOMICIDE. [chap. XXII. Sec. 409. Declarations before the act causing death. — Declarations of the deceased made before the commission of the act which caused his death are admissible . in evidence when constituting a part of the res gestce, or when showing a motive, or when going to show who was the aggressor. ^ Thus in State v. Vincent,^ on the trial of an indictment for murder charged to have been committed while the deceased and the accused were travelling together, it was held not to be error to instruct the jury that what the deceased said " about where they had come from, and where they were going, being engaged in the journey, might be received as part of the res gestcB^ In Cox v. State,^ where three persons were on trial for the murder of B., it appeared that B. was taken out of his father's liouse in the night by a party of men, who allowed him to return under surveillance and put on his boots, when he told his mother in a whisper, with exhibitions of terror, that two of them were two of the defendants, and a third one who was jointly indicted with them. His statement was part of the res gestce, and her testimony thereof was admissi- ble. In Boyle v. State,* on a trial for murder, wherein the defendant pleaded in self-defence, that when he shot the deceased the latter was striking at him with a knife, evidence that the night before the deceased told the defendant of two felonious assaults which he had committed, and that he pre- ferred a knife to a pistol as being more effective, this state- ment was held admissible, as showing that the defendant had ground for believinsf that the attack on him was felonious. And evidence that the deceased stated to a justice of the peace that the defendant threatened to kill him, and that he 1 Burns v. State, 49 Ala. 870 and liearingr of witnesses, the dcola- (1870) ; EJnioncls v. State, 34 Ark. rations of M., made wlien startinor to 720 (1879); Hoyle v. State, 97 Ind. the place where he met R., showing 322 (1884) ; State v. Moelchen, 5:? a hostile motive, were admissible in Iowa, 810 (1880); s.c. 5 N. W. Kep. behalf of B., though not comnuini- 186; State v. Vincent, 24 Iowa, 570 cated to B. prior to the killinjc, to (1868) ; s.c. 95 Am. Dec. 758 ; State enable the jury to determine who was (.-. Harris, 68 N. C. 1 (1868) ; Cox v. the ajrsressor. Burns v. State, 49 State, 8 Tex. App. 254 (1880) ; .s.c. Ala. 870 (1870). See ante, §§ 401, 84 Am. Rep. 740. 402. Where on trial of B. for murder of - 24 Iowa, 570 (1868). M. it was shown that M. sought an s 8 Tex. App. 254 (1880); s.c. 34 interview with B., and they walked Am. Rep. 746. away together, out of the presence * 97 Ind. 322 (1884). SEC. 403.] EVIDENCE — COMPETENCE. 437 desired the defendant's arrest, is admissible in connection with evidence of a conversation between tlie justice and the defendant, wherein the latter was informed of the deceased's complaint.^ Where it is essential to show physical peculiarities, this may be done by the declarations of the party. Thus in a murder trial, where it is material to prove that the deceased had a peculiar tooth in his mouth", his declarations about it, made when there could have been no lis mota^ are admissible in evidence, as I'es geatce? And it is said in State v. Harris ^ that the defendant may prove that the deceased said he had a burn upon the abdomen. But it is not, as a general rule, competent to prove against the defendant previous declarations of the deceased made out of his presence and hearing, and not communicated to him.* Thus in a murder trial it is error to admit evidence of the declarations of the deceased, made several hours before the murder, that he expected the defendant at his house that night.^ And evidence that the deceased, on being remon- strated with by the witness for visiting defendant's wife, replied that he should go there as much as he pleased, and that he was not afraid of defendant or of his shooting, was 1 State V. Moelchen, 53 Iowa, 310 (2) that declarations of the deceased (1880) ; s.c. 5 N. W. Rep. 186. in regard to liis having liad a prior ^ F:dmonds i-. State, 34 Ark. 720 attack of disease of some character, (1879). the nature of which he did not entirely 8 63 N. C. 1 (1868). comprehend, and which were not * Cheek f. State, 35 Ind. 492 (1871). made as explanatory of the state of See People v. Carkhiiff, 24 Cal. 640 his health at the time, but merely as (1864); Weyrich u. People, 89 111. a narrative of past occurrences, were flO(1878); Combs f. State, 75 Ind. also inadmissible; (3) that declara- 215 (1881) ; Sl'ite v. Vincent, 24 Iowa, tions of the deceased in regard to 570 (1868) ; s.c. 95 Am. Dec. 753. his suspicions of his wife's chastity, At the trial of a wife for the mur- not made in her presence or commu- der of her husband by poisonine, the nicated to her, were also inadmissible, court held (1) that evidence of decla- but that it was compcte.nt for the rations of the deceased, made at dif- prosecution to show that she was un- ferent times through a period of some chaste, in order to establish a motive ten years or more anterior to his which might operate on her mind, death, out of the hearing of the wife, and induce her to take the life of the and not assented to by her, or even deceased. Weyrich v. People, 89 111. made known to her, were inadmissible 90 (1878). as being simply expressive of the ^ People v. Carkhuff, 24 Cal. 640 state of health and condition of mind, (1864). or state of feeling, of the deceased ; 438 HOMICIDE. [chap. xxh. held to be inadmissible, such statements not having been communicated to the accused.^ Sec. 410. Declarations of deceased — Not made iu ex- tremis. — Declarations made by the person slain, after receiv- ing the fatal injury, when not in extremis, must, to be compe- tent, be a part of the res yestce^ unless made in the presence of the defendant,^ or unless contradictory of dying declarations proved by the state, and introduced by the defendant for the purpose of impeaching such declarations.* Thus it is said in People v. Lawrence^ that where, upon a trial for murder, the dying declarations of the deceased are admitted in evidence against the accused, he may introduce evidence of statements, made by the deceased at other times, directly contradicting his dying declarations ; and it is not necessary in such cases, as indeed it is generall}^ impossible, that the attention of the deceased should have been previously called 1 Combs 1-. State, 75 Ind. 215 (1881). 2 See State v. Frazier, 1 Houst. Cr. Cas. (Del.) 176 (1865) ; Darby V. State, 79 Ga. 63 (1887) ; s.c. ?> S. E. Hep. 663 ; Stevenson v. State, 69 Ga. 68 (1882); Wilson v. People, 94 111. 299 (1880); Jones v. State, 71 Ind. 66 (1880) ; Commonwealth v. Hack- ett, 84 Mass. (2 Allen) 136 (1861); Mayes v. State, 64 Miss. 329 (1886) ; s.c. 60 Am. Rep. 58 ; Warren v. State, 9 Tex. App. 619 (1880) ; s.c. 35 Am. Rep. 745; Tooney v. State, 8 Tex. App. 452 (1880); State v. Carlton, 48 Vt. 636 (1876) ; Livingston v. Commonwealth, 14 Gratt. (Va.) 592 (1857). On a trial of A for the murder of B, testimony of C that hearing a gun's re- port and B screaming, he ran to her, three hundred yards distant, and that she said A had shot her, was admis- sible as part of the resriestce. Steven- son V. State, 69 Ga. 68 (1882). On a trial of T. for the murder of B., by poisoning, a witness for the state testified tliat he found B., the day before he died, prostrate and helj>h>ss behind a gambling-saloon with which T. was connected. It was held that for the purpose of showing B.'s bodily condition at the time, his declaration to the witness was admissible, that he was not drunk, but had been drugged and dragged there. Tooney v. State, 8 Tex. App. 452 (1880). 3 Peoi)le V. McCartliy, 110 N. Y. 309 (1888); s.c. 18 N. E. Rep. 128. See State v. Nash,7 lown, 347 (1858) ; State V. Gillick, 7 Iowa, 287 (1858) ; State V. Devlin, 7 Mo. App. 32 (1880). * People V. Lawrence, 21 Cal. 368 (1863) ; Felder v. State, 23 Tex. App. 477 (1887) ; s.c. 59 Am. Rep. 777 (1887). A witness testified that after de; ceased was shot, and while she waj conversing with defendant in his pres- ence, deceased went into tlie house. She was also permitted to state what deceased said in the house. After it ajjpeared that defendant was not pres- ent at the conversation in the house, the court struck out that conversa- tion. The appellate court held that the error, if any, in admitting such conversation was cured. People v. McCarthy, 110 N. Y. 309 (1888); s.c. 18 N. E. Hep. 128. s 21 Cal. 368 (1863). SEC. 411.] EVIDENCE — COMPETENCE. 439 to the particular occasion and circumstances under which the supposed contradictory statements were made, -in order to allow him to offer any possible explanation. On a trial for murder, the government having proved that the prisoner beat the deceased, complaints of pain made by the deceased within two hours of the beating, are admissible in evidence.^ And it was recently held by the supreme court of Georgia in the case of Darby v. State ^ that a witness may testify that the defendant had cut him, and he had done nothing ; the question whether the deceased had done any- thing or not being a question of fact and not a conclusion of law, the testimony was propei'ly admitted. Sec. 411. Same — Declarations as to slayer. — Declara- tions of the deceased not made in extremis, as to the assaulting party, to be admissible in evidence must form part of the res gestce of the case. Thus where the deceased, a few minutes after the shooting, said, " Prince Jones shot me," this was held to be clearly mere narrative, and not admissible.^ In Mayes V. State,* which was a trial for murder, it became a question whether the defendant or another person cut the deceased during a fight. It appeared that the deceased, after being cut, ran away, and five minutes afterwards made certain state- ments to a witness. These statements were held not to be of the res gestce, and therefore inadmissible. In the case of State V. Frazier,^ on the trial of an indictment for mur- der, the statements of the deceased, made about half an hour after the shooting, and after he had been removed to his own house and laid in bed, were held inadmissible as part of the res gestce. Where on a trial for murder a witness for the prosecution testified that he saw, from a distance of a hundred and fifty yards, the deceased when he fell shot ; and that he immedi- ately went to him and asked him how he shot himself, to Avhich he replied, " I did not do it ; I Avas shot from up yon- der," motioning toward a neighboring mountain, the evidence 1 Livingston v. Commonwealth, 14 * 64 Miss. 329 (1886) ; s.c. 1 So. Gratt. (Va.) 592 (1857). Rep. 733. 279 Ga. 63 (1887); s.c. 3 S. E. M Houst. Cr. Cas. (Del.) 176 Rep. 663. (1865). 3 Jones V. State, 71 Ind. 66 (1880). 440 HOMICIDE. [chap. XXII. was held to be competent, as a part of the res gestce. But proof of the contemporaneous declaration by the deceased that he knew one G. W. shot him, for he had threatened him, has been held to be incompetent.^ Sec. 412. Same — Dyiiij? declarations. — Dying decla- rations of the person killed, as to matters relating to the homicide, which are of the res gestce^ are admissible in evi- dence ; but to render them admissible as dying declarations they must be shown to have been made when the declarant was in full expectation of approaching death, and had lost all hope of recovery.^ Preliminary to the introduction in 1 Warren v. State, 9 Tex. App. 619 (1880) ; s.c. 35 Am. Rep. 745. 2 Jordan v. State, 81 Ala. 20 (1886) ; Ward V. State, 78 Ala. 441 (1885); Keynolds v. State, 08 Ala. 502 (1881) ; Ex parte Nettles, 58 Ala. 208 (1877); May V. State, 55 Ala. 39 (1876) ; Kelly V. State, 52 Ala. 301 (1875) ; Walker V. State, 52 Ala. 192 (1875) ; Johnson r. State, 50 Ala. 456 (1873) ; Johnson V. State, 47 Ala. 9 (1872) ; Jolmson r. State, 17 Ala. 618 (1850) ; McLean V. State, 16 Ala. 672 (1849) ; Ben v. State, 37 Ala. 103 (1861); s.c. 1 Ala. Sel. Cas. 9 ; Dunn v. State, 2 Ark. 229 (1839) ; s.c. 35 Am. Dec. 54 ; People v. llamirez, 73 Cal. 403 (1887) ; People r. Lee Sare Bo, 72 Cal. 623 (1887) ; People V. Brady, 72 Cal. 490 (1887) ; People V. Abbott (Cal.) 4 Pac. Kep. 769 (1884), affirmed without report, 66 Cal. ; People v. Graij, 61 Cal. 164 (1882) ; s.c. 44 Am. Rep. 549; Peo- ple V. Taylor, 59 Cal. 640 (1881); People V. Hoilgdon, 55 Cal. 76 (1880) ; B.C. 36 Am. Rep. 30 ; People v. Cliin Mook Sow, 51 Cal. 597 (1877) ; Peo- ple V. Ah Dat, 49 Cal. 652 (1857); People V. Vernon, 35 Cal. 49 (1868); People V. Sanchez, 24 Cal. 17 (1864); People V. Ybarra, 17 Cal. 166 (I860) ; People V. Lee, 17 Cal. 79 (I860) ; People V. Glenn, 10 Cal. 32 (1858) ; Dixon 1-. State, 13 Fla. 636 (1871) ; Walton V. State, 79 Ga. 447 (1887); B.C. 5 S. E. Hep. 203 ; Bryant i-. State, 80 Ga. 272 (1887) ; s.c. 4 S. E. Rep. 853; Darby v. State, 79 Ga. 63 (1887) ; s.c. 3 S. E. Rep. 663; Whitaker v. State, 79 Ga. 87 (1887) ; s.c. 3 S. E. Rep. 403 ; Dumas i: State, 62 Ga. 58 (1878); Hill v. State, 41 Ga. 484 (1871) ; Thompsons. State, 24 Ga. 297 (1858); Campbell v. State, 11 Ga. 353 (1852); Westbrook v. People, 126 III. 81 (1888) ; s.c. 18 N. E. Rep. 304; Digbj v. People, 113 111. 123 (1885); s.c. 55 Am. Rep. 402; Afoeck V. People, 100 111. 242 (1881) ; s.c. 39 Am. Rep. 38; Tracy v. People, 97 111. 101 (1880) ; Scott v. People, 63 111. 508 (1872); Barnett v. People, 54 III. 325 (1870) ; Murpliy r. People, 37 III. 447 (1865) ; Starkey v. People, 17 III. 21 (1855) ; Powers v. State, 87 Ind. 144 (1882); Montgomery v. State, 80 Ind. 338 (1881); s.c. 41 Am. Rep. 815; Jones r. State, 71 Ind. 66 (1880) ; Watson V. State, 63 Ind. 548 (1878) ; Binns v. State, 46 Ind. 311 (1874); Morgan i-. State, 31 Ind. 193 (1809) ; Ward V. State, 8 Blackf. (Ind.) 101 (1846) ; State v. Schmidt, 73 Iowa, 469 (1887) ; s.c. 35 N. W. Rep. 590; State;; Johnson, 72 Ii.wa, 393 (1887); s.c. 34 N. W. Rep. 177 ; State v. Leep- er, 70 Iowa, 748 (1880) ; s.c. 30 N. W. Rep. 501 ; State v. Elliott, 45 Iowa, 486 (1877) ; s.c, 2 Am. Cr. Rep. 322 ; State V. Nash, 7 Iowa, 347 (1858); State V. Wilson, 24 Kan. 189 (1880) ; s.c. 3() Am. Rep. 257; State v. Bohan, 15 Kan. 407 (1875) ; s.c. 2 Am. Cr. Rep. 278; State v. Medlicott, 9 Kan. 257 (1872) ; Peoples v. Common- wealth, 87 Ky. 487 (1888); s.c. 9 S. SEC. 412.] EVIDENCE — COMPETENCE. 441 evidence of such declarations it must be shown by the party- offering them in evidence, that they were made under a sense of impending death.i It is not necessary, however, that it should be stated at the time that the declarations were so made; it being enough if it satisfactorily appears, in any 1 1 Greenl. Ev. (14th ed.) § 158. W. Rep. 509; Vauslian v. Common- wealth, 86 Ky. 4;U (1887); s.c. 6 S. W. Rep. 153 ; Marcum v. Common- wealth (Ky.) 1 S. W. Rep. 727 (1880); Luker v. Commonwealth (Ky.) 5 S. W. Rep.:}54 (1887) ; Mock- abee v. Commonwealth, 78 Ky. 380 (1880) ; Collins v. Commonwealth, 12 Bush (Ky.) 271 (1870) ; s.c. 2 Am. Cr. Rep. 282 ; Leiber v. Commonwealth, 9 Bush (Ky.) 11 (1872) ; Young v. Commonwealth, 6 Bush (Ky.) 317 (1869); Adwell )\ Commonwealtli, 17 B. Mon. (Ky.) 310 (1850) ; Walston t;. Commonwealth, 10 B. Mon. (Ky.) 15 (1855) ; State v. Newhouse, 39 La. An. 863 (1887); s.c. 2 So. Rep. 799; State V. Spencer, 30 La. An. 362 (1878) ; State V. Brunetto, 13 La. An. 45 (1858) ; State v. Hannah, 10 La. An. 131 (1855); State y. Price, La. An. 691 (1851); Hays v. State, 40 Md. 633 (1874) ; Commonwealth v. Haney, 127 Mass. 455 (1879) ; Common- wealtii V. Roberts, 108 Mass. 296 (1871) ; Commonwealth r. Carey, 66 Mass. (12 Cush.) 240 (1853) ; People V. Simpson, 48 Mich. 474 (1882) ; People V. Olmstead, .30 Midi. 431 (1874) ; s.c. 1 Am. Cr. Rep. .301 ; People V. Knapp, 26 Mich. 112 (1872) ; s.c. 1 Green Cr. Rep. 252 ; State v. Canti- enij, .34 Minn. 1 (1885) ; s.c. 6 Am. Cr. Rep. 418; 24 N. W. Rep. 458; Hill V. State, 64 Miss. 431 (1880) ; s.c. 1 So. Rep. 494 ; Brown v. State, 32 Miss. 433 (1856) ; Lewis v. State, 17 Miss. (9 Smed. &. M.) 115 (1847) ; Woodsides v. State, 3 Miss. (2 How.) 655 (1837) ; State v. Partlow, 90 Mo. 608 (1886); s.c. 59 Am. Rep. 31; 4 S. W. Rep. 14; State v. Mathes, 90 Mo. 571 (1880) ; s.c. 2 S. W. Rep. 800 ; State r. Rider, 90 Mo. 54 (1880) ; s.c. 1 S. W. Rep. 825; State v. Van- sant, 80 Mo. 67 (1883); State v. Johnson, 70 Mo. 121(1882); State u. Kilgore, 70 Mo. 540 (1879); State v. Draper, Qb Mo. 335 (1877); s.c. 27 Am. Rep. 287 ; State v. McCanon, 51 Mo. 160 (1872); State v. Simon. 50 Mo. 370 (1872); Fitzgerald v. State, 11 Neb. 577 (1881); s.c. 10 N. W. Rep. 495 ; Rakes v. People, 2 Neb. 157 (1870) ; Peak v. Stale, 50 N. J. L. (21 Vr.) 179 (1888); s.c. 10 Cr. L. Mag. 528; 12 Atl. Rep. 701; Don- nelly r. State, 26 N. J. L. (2 Dutch.) 463 (1857) ; Brotherlon v. People, 75 N. Y. 159 (1878) ; s.c. 3 Am. Cr. Rep. 218; People v. Davis, 50 N. Y. 95 (1874) ; People v. Perry, 8 Abb. (N. Y.) Pr. N. S. 27 (1870) ; Hackett V. People, 54 Barb. (N. Y.) 370 (1806) ; People v. Green, 1 Den. (N. Y.) 014 (1845) • Hunt u. People, 3 Park. Cr. Cas. (N. Y.) 509 (1857); People V. Knickerboc'ker, 1 Park. Cr. Cas. (N. Y.) .302 (1851); People v. Grunzig, 1 Park. Cr. Cas. (N. Y.) 299 (1851) ; People v. Anderson, 2 Wheel. Cr. Cas. (N. Y.) -398 (1824) ; State v. Mills, 91 N. C. 581 (1884); State i;. Blackburn, 80 N. C 474 (1879) ; State V. Poll, 1 Hawks (N. C.) L. 442 (1821); s.c. 9 Am. Dec. 655; State V. Tilghman, 11 Ired. (N. C.) L. 513 (1850) ; State v. Shelton, 2 Jones (N. C.) L. 360 (1855) ; s.c. 64 Am. Dec. 587; State v. Peace, 1 Jones (N. C.) L. 251 (1854) ; State v. Harper, 35 Ohio St. 78 (1878) ; s.c. 35 Am. Rep. 596; Bobbins v. State, 8 Ohio St. 131 (1857) ; Montgomery v. State, 11 Ohio, 424 (1842) , State v. Gar- rand, 5 Oreg. 210 (1874); State v, Fitzhugh, 2 Oreg. 227 (1867) ; Goodall V. Stale, 1 Oreg. 333 (1801); S.C. 80 Am. Die. 396; Commonwealth V. Railing, 113 Pa. St. 37 (1886); s.c. 442 MICIDE. [CHxVP. XXII. ■manner, tliat they were made under the solemnity of that sanc- tion. The fact may be shown by the direct language of the decedent, or may be inferred from his evident danger, or it may be shown by the opinion of medical experts or other attendants, or from his conduct, or from other circumstances 4 Atl. Rej). 459; Kane r. Common- wealth, 10!) Pa. St. 541 (1885) ; Allison r. Commonwealth, 99 Pa. St. 17 (1881) ; Sullivan i\ Commonwealth, m Pa. St. 284 (1880) ; Small v. Com- monwealth, 91 Pa. St. 304 (1879) ; Brown v. Commonwealth, 78 Pa. St. 321 (1873) ; s.c. 13 Am. Rep. 740 ; Commonwealth v. Williams, 2 Ashm. (Pa.) 69 (1839) ; Commonwealth r. Murray, 2 Ashm. (Pa.) 41 (1834) ; State V. Belcher, 13 S. C. 459 (1880) ; State V. McEvoy, 9 S. C. 208 (1875) ; State V. Ferguson, 2 Hill (S. C.) L. 619 (1835); s.c. 27 Am. Dec. 412; State V. Quick, 15 Rich. (S. C.) L. 342 (1868) ; State v. Freeman, 1 Speer (S. C.) 57 (1842); Hudson v. State, 3 CoUlw. (Tcnn.) 355 (1860) ; Smith V. State, 9 Humph. (Tenn.) 9 (1848) ; Nelson v. State, 7 Humph. (Tenn.) 542 (1847) ; Curtis v. State, 14 Lea (Tenn.) 502 (1884) ; Stewart V. State, 2 Lea (Tenn.) 598 (1879); Brakefield v. State, 1 Sneed (Tenn.) 215 (1853); Wri<;;ht v. State, 41 Tex. 246 (1874) ; Benavides v. State, 31 Tex. 579 (1869); Burrell v. State, 18 Tex. 713 (1857) ; Drake v. State, 25 Tex. App. 293 (1888) ; s.c. 7 S. W. Rep. S68; Irby v. State, 25 Tex. App. 203 (1888) ; s.c. 7 S. W. Rep. 705; Ledbetter r. State, 23 Tex. App. 247 (1887) ; s.c. 5 S. W. Rep. 220 ; War- ren V. State, 9 Tex. App. 619 (1881) ; s.c. 35 Am. Rep. 745; State v. Wood, 53 Vt. 560 (1881) ; State v. Patterson, 45 Vt. 308 (1873) ; s.c. 12 Am. Rep. 200 ; 1 Green Cr. Rep. 490 ; State v. Center, 35 Vt. 378 (1862) ; rur,/ear V. Commonwealth, 83 Va. 51 (1887) ; s.c. 9 Cr. L. Ma ; People v. Brady, 72 2 See Jonion v. State, 82 Ala. 1 Cal. 490 (1887) ; s.c. 14 Pac. Rep. (1880) ; s.c. 2 So. Rep. 4(50; People v. 202; People v. Lee Sare Bo, 72 Cal. Ramirez, 73 Cal. 403 (1887); s.c. 15 023 (1887); s.c. 14 Pac. Kep. 310; 454 HOMICIDE. [chap. XXII. manner in which he came by his death, made within three or four minutes before his death, and about the same time as a statement by liim that he was going to die, is admissible in evidence as a dying declaration, whether it was made before or after the statement that he knew he was going to die, as all the circumstances showed in him at the time a knowledge of impending death.^ And it is said in the case of Puryear V. Commonwealth ^ that, on a trial for murder, evidence that the deceased, while in the agonies of death, which quickly followed, charged the accused, her husband, who was present, with having killed her by poison administered in whiskej^ a short time before, is admissible as a dying declaration. In State V. Johnson^ the declarations of the murdered man, made after he was found insensible, and shortly before he died, as to who had assaulted and robbed him, were given in evidence by his wife, who nursed him, and who testified at the time they were made her husband " knew he was going to die." The wife was not cross-examined as' to that point, and there was nothing in the record to impeach her knowl- edge of her husband's then state of mind. The declarations were held to be admissible. In Walton v. State ^ <^lyiiig decla- rations were held to have been properly admitted where they were made within an hour of the death of the deceased, after his physicians had told him that there was no more than one chance in a hundred that he would recover, and asked him if he had any statement to make, and where the deceased had, shortly after he Avas stabbed, stated that he was going to die. In Jordan v. State ^ the declarations of the deceased, made about two hours after receiving the wounds which proved fatal, and before the arrival of the physician, tliat " J. shot me, and H. cut me, and all for nothing," were properly ad- mitted as evidence, on the testimony of the witness that the Bryant v. State, 80 Ga. 272 (1887) ; i People »;. Lee Sarc Bo, 72 Cal. s.c. 4 S. E. Rep. 853; State v. John- 623 (1887); s.c. 14 Pac. Rep. 310. son, 72 Iowa, 393 (1887); s.c. 34 233 Va. 51 (1887); s.c. 9 Cr. L. N. W. Rep. 177 ; Peoples v. Common- Mag. 788; 1 S. E. Rep. 512. wealth, 87 Ky. 487 (1888); s.c. 9 » 72 Iowa, 393 (1887); s.c. 34 N. S. W. Rep. 509 ; Luker v. Common- W. Rep. 177. wealth (Ky.) 5 S.W. Rep. 354 (1887); * 79 Ga. 446 (1887); s.c. 5 S. E. Puryear v. Commonwealth, 83 Va. Rep. 203. 51 (1887) ; s.c. 9 Cr. L. Mag. 788; 1 » 82 Ala. 1 (1886) ; s.c. 2 So. Rep. S. E. Rep. 512. 460. SEC. 419.] EVIDENCE — COMPETENCE. 455 deceased said just before, "he did not think he would get well," although the witness declared to him his own opinion that he would recover. In People v. Brady,^ on the day after the deceased was wounded, when a physician had stated in his hearing that his wound was mortal, and that he was going to die, and he had announced repeatedly that he had no hope of recovery, he made a statement before a justice of the peace, in the presence of several persons, which was taken down by a reporter in shorthand, written out, read, and assented to by the deceased, who signed and swore to it, and died soon after. The statement was held to be admissible in evidence as a dying declaration, it not appearing that there were any questions put or answers given, after the statement had com- menced, which did not appear in it as presented, or that any- thing was said by the deceased previous to the formal dying declaration which conflicted with it. In Bryant v. State ^ it is held that evidence that a witness saw the deceased five days before he died and the deceased said he was going to die, and stated that a number of men had taken him into the woods and whipped liim with a buggy trace, and that the defendant was one of them, is competent. And in Luker v. Commonwealth,^ upon a trial for homicide, a witness testified : " I asked the deceased if he was much hurt. He said, ' I am killed.' Asked him if he knew who did it. Said, ' Yes, Charley Luker ' ; said " We had no fuss.' " The court held that this statement of the deceased, including the clause, " We had no fuss," relating directly to the act of killing, and the evidence showing that the deceased was at the time mortally wounded, and fully conscious of approaching death, the state- ment was admissible as a dying declaration. Sec. 419. Same — Form of. — No particular form is necessary to render a dying declaration valid and admissible in evidence, so it fills all the requisites for, and is bona fide a dying declaration. In People v. Ramirez* a dying declara- tion commenced, " I, A, believing I am about to die, do make this, my dying statement." The surgeon who attended 1 72 Cal. 490 (1887) ; s.c. 14 Pac. 3 5 g. W. Rep. (Ky.) 354 (1887). Rep. 202. 4 73 Cal. 403 (1887) ; s.c. 15 Pac. 2 80 Ga. 272 (1887) ; s.c. 4 S. E. Rep. 33. Rep. 853. 456 HOMICIDE. [chap. XXII. the deceased testified to his condition, and the cliaracter of his wounds, and that on the day before the declaration was made witness informed the deceased that he was going to die, and that thereupon the deceased expressed a wish to make a dying dechT,ration ; and sucli declaration was held admissible. Sec. 420. Evidence of cliaracter, disposition, and habits of deceased — Proof by prosecution. — In a prosecution for homicide it is not competent for the prosecution to show the peaceable disposition or character of the deceased, or his good reputation, except in rebuttal, when it has been assailed by the defence ; for it is to be presumed, until otherwise shown, that the character, disposition, or habits of the person killed had no influence upon the defendant in committing the homi- cide.^ And the court should not allow the prosecution to prove, against the objection of the defence, tliat the deceased was not in fact a dangerous man. His reputation may be proved where the circumstances of the case render it doubtful whether the homicide was committed in self-defence, in order to show that the defendant may reasonably have believed himself in danger ; but his actual character is not material in this connection.2 In Thomas v. People ^ the crime charged was committed in state's prison, where the prisoner and the deceased were confined. The prisoner gave evidence to show that the character of the deceased before he came to the prison was bad; that he was quarrelsome and vindictive. The prosecution then called witnesses, who were permitted to testify, under objection, that, in the respects stated, his character, while in prison, was good. The court held on 1 Ben r. State, 37 Ala. 103 (1861); butt, 17 Mich. 9 (18G8) ; s.c. 97 Am. B.C. 1 Ala. Sel. Cas.9; Pounds. State, Dec. 162; Law. liisan. 463; Chase ?-. 43 Ga. 88 (1871); State v. Hockett, State, 40 Miss. 683 (1872); State v. 70 Iowa, 442 (1886); s.c. 9 Cr. L. Hogue, G Jones (N. C.) L. 381 (1859); Mag. 208; 30 N. W. Rep. 742; State State v. Pearce, 15 Nev. 188 (1880); U.Potter, 13 Kan. 414 (1874); Graves Thomas r. People, 67 N. Y. 218 V. State, 14 Tex. App. 113 (1884). (1876). Compare Dukes v. State, 11 See Jackson v. State, 77 Ala. 18 Ind. 557 (1858); s.c. 71 Am. Dec. (1884); Franklin v. State, 29 Ala. 370; Russell i: State, 11 Tex. App. 14 (1856); People v. Bezy, 67 Cal. 288(1882). 223 (1885) ; People v. Anderson, .39 2 People v. Anderson, 39 Cal. 703 Cal. 703 (1870); People i;. Lombard, (1870). 17 Cal. 316 (1861) ; People r. Murray, ^ (jy n. y. 218 (1876). 10 Cal. 309 (1858); People r. Gar- SEC. 421. J EVIDEXCE COMPETENCE. 457 appeal that there was no error in the admission of the testi- mony.^ Sec. 421. Same — Proof by defence. — The reputation of the deceased as a violent, quarrelsome, turbulent, dangerous, and vindictive man, or of his habit of going armed, is admissible under the plea of self-defence where the evidence does not conclusively show that the defendant was solely in fault, and that he had no reason to fear that his life or safety was in danger from the deceased.^ Thus in a prosecution for 1 Where evidence was offered to show that the defendant while in tlie army was reputed a good and valiant soldier, this was held to be irrelevant in People v. Garbutt, 17 Midi. 9(1808) ; s.c. 97 Am. Dec. 162 ; Law Insan. 460. 2 See Lang v. State, 84 Ala. 1 (1887) ; s.c. 5 Am. St. Rep. 324; 4 So. Rep. 193; Williams v. State, 74 Ala. 18 (1883) ; Bowles v. State, 58 Ala. 335 (1877) ; Eiland v. State, 52 Ala. 322 (1875) ; Dupree v. State, 33 Ala. 380 (1859) ; 73 Am. Dec. 422 ; Frank- lin V. State, 29 Ala. 14 (1856) ; Camp- bell V. State, 38 Ark. 498 (1882); People V. Moan, 65 Cal. 532 (1884) ; People V. Lombard, 17 Cal. 316 (18G1); People v. Murray, 10 Cal. 309 (1858) ; May v. People, 8 Colo. 216 (1885) ; s.c. 6 Cr. L. Mag. 692 ; 6 Pac. Kep. 816; Jones v. People, 6 Colo. 453 (1882) ; s.c. 45 Am. Rep. 526; Drake 1-. State, 75 Ga. 413 (1885); Doyal r. State, 70 Ga. 134 (1883); Pound V. State, 43 Ga. 88 (1871); Bond V. State, 21 Fla. 738 (1886) ; People V. Stock, 1 Idaho N. S. 218 (1868); Patterson v. State, 66 Ind. 185 (1879) ; Fahnestock v. State, 23 Ind. 23 (1804); State v. Hockett, 70 Iowa, 442 (1886); s.c. 9 Cr. L. Mag. 208; 30 N. W. Rep. 742; State v. Graham, 61 Iowa, 608 (1883) ; s.c. 16 N. W. Rep. 743; State v. Riddle, 20 Kan. 711 (1878) ; Payne v. Common- wealth, 1 Met. (Kv.) 370 (1858); State r. Jackson, 37 La. An. 896 (1885); State !•. Birdwell, 36 La. An. 859 (1884) ; State v. Janvier, 37 La. An. 645 (1885) ; State v. Labuzan, 37 La. An. 489 (1885); State v. Ford, 37 La. An. 443 (1885) ; State v. Wat- son, 36 La. An. 148 (1884); State v. Claude, 35 La. An. 71 (1883) ; State V. Jackson, 33 La. An. 1087 (1881) ; State V. Vance, 32 La. An. 1 177 (1880) ; State I'. Jackson, 12 La. An. 679 (1856) ; Costley v. State, 48 Md. 175 (1877) ; Commonwealth v. Barnacle, 134 Mass. 215(1883) ; s.c. 45 Am. Rep. 319; Commonwealth r. Mead, 78 Mass. (12 Gray) 167 (1858); s.c. 71 Am. Dec. 741 ; People v. Garbutt, 17 Mich. 9 (1868) ; s.c. 97 Am. Dec. 162 ; Law Insan. 463; State r. Dumpliey,4 Minn. 438 (1800); Spivey v. State', 58 Miss. 858 (1881) ; Chase v. State, 46 Miss. 683 (1872) ; Newcomb v. State, 37 Miss. 383 (1859) ; State v. Downs, 91 Mo. 19 (1886) ; s.c. 3 S. W. Rep. 219 ; State V. Rider, 90 Mo. 54 (1886) ; s.c. 1 S. W. Rep. 825; State v. Hayden, 83 Mo. 198 (1884) ; State v. VAkim, 63 Mo. 159 (1876); State v. Brown, 63 Mo. 439 (1876) ; State r. Harris, 59 Mo. 550 (1875) ; State v. Bryant, 55 Mo. 75 (1874) ; State v. Keene, 50 Mo. 357 (1872) ; State v. Pearce, 15 Nev. 188 (1880) ; Peo/>le v. Druse, 103 N. Y. 655 (1886) ; s.c. 9 Cr. L. Mag. 88 ; 8 N. E. Rep. 733; Sindram v. People, 88 N. Y. 196 (1882) ; s.c. Law Insan. 802; Abbott i-. People, 86 N. Y. 460 (1881) ; Thomas v. People, 67 N. Y. 218 (1876) ; Nichols v. People, 23 Hun (N. Y.) 165 (1880) ; McKenna v. People. 18 Hun (N. Y.) 580 (1879); State V. Matthews, 78 N. C. 523 (1878) ; State I'. Tilly, 3 Ired. (N. C.) L. 424 (1843) ; State v. Floyd, 6 Jones (N. C) 458 HOMICIDE. [chap. XXII. murder in tlie first degree, under tlie Wisconsin statute, wliere it appeared that the fatal blow was inflicted with a pocket-knife, and that the deceased made the first assault, it was held error to reject evidence offered by the defendant to show that the deceased was a man of great physical strength, and was " a desperate, fighting, ruffianly man," and that the defendant had knowledge of these facts.i Where it was in evidence that the defendant H. charged the deceased with perjury, adding : " I can prove it. Come up here, M." ; where- upon the defendant M. stepped up, when the deceased struck him, knocked him on his knees, and stamped on him; M. then rose up, and the deceased immediately thereafter staggered back mortally wounded, one witness stating tliat both JNI. and the deceased had knives in their hands ; it was further in evidence that M. was small, crippled, and one-eyed, and deceased was a strong man. The court held that evidence of the character of the deceased for violence was admissible.^ But such evidence is admissible only where the proof leaves open the question of self-defence ; and then it must be proved, not by opinions of witnesses, but by evidence of reputation.3 Nqj can such reputation be proved by evi- L. .392 (1859) ; State v. Hogue, 6 Jones pare State v. Field, 14 Me. 244 (1837) ; (N. C.) L. 381 (1859) ; Marts i-. State, s.c. 31 Am. Dec. 52; Conimonwealtli 26 Ohio St. 162 (1875) ; Blackburn v. v. Hilliard, 68 Mass. (2 Gray) 294 State, 23 Ohio St. 146 (1872); s.c. 2 (1854); Commonwealth v. Ferrigan, Gr. Cr. Rep. 534 ; Tiffany v. Common- 44 Pa. St. 386 (1863). wealth, 121 Pa. St. 165 (1888) ; s.c. i State v. Nett, 50 Wis. 524 (1880); 15 Atl. Rep. 462; Alexander r. Com- s.c. 2 Cr. L. Mag. 78; 7 N. W. Rep. monvvealth, 105 Pa. St. 1 (1884) ; s.c. 344. 5 Cr. L. Mag. 829; State v. Smith, It is said in Blackburn v. State, 12 Rich. (S. C.) L. 430 (1860) ; Rippy 23 Ohio St. 146 (1872) ; s.c. 2 Gr. Cr. V. State, 2 Head (Tenn.) 217 (1858); Rep. 534, that the defendant for the West V. State, 18 Tex. App. 640 purpose of showing that the deceased (1885) ; Moore v. State, 15 Tex. App'. came to her death by suicide, may 1 (1884); Williams v. State, 14 Tex. show that six years previously the App. 102 (1883) ; s.c. 46 Am. Rep. deceased was of a melancholy dispo- 237; Creswell v. State, 14 Tex. App. sition and threatened to commit sui- 1 (1884) ; Brunei r. State, 12 Tex. cide. The remoteness of the period App. 521 (1883) ; Grisson v. State, goes merely to the weight, and not to 8 Tex. App. 386 (1880) ; Lewallen r. the competency of the evidence. State, 6 Tex. App. 475 (1879) ; Plas- 2 state v. Matthews, 78 N. C. 523 ters V. State, 1 Tex. App. 673 (1877) ; (1878). Harrison v. Commonwealth, 79 Va. 379 ^ Harrison v. Commonwealth, 79 Va. (1884); s.c. 52 Am. Rep. 634; State 374 (1884) ; s.c. 52 Am. Rep. 634. r. Nett, 50 Wis. 524 (1880) ; s.c. 2 Cr. See Dupree v. State, 33 Ala. 380 L. Mag. 78; 7 N. W. Rep. 344, Com- (1859) ; People v. Moan, 65 Cal. 532 I SEC. 421.] EVIDENCE COMPETENCE. 459 deuce of specific acts of violence or turbulence, or of isolated facts, which are not part of the res gestce} The mere fact that the deceased severely beat the prisoner six weeks before the killing, is inadmissible,^ for the bad character of the deceased cannot be shown by evidence of particular facts, showing misconduct, and the like, as that he was an escaped convict,^ or that he was in the habit of using liquor to excess.* And evidence of threats, or of the dangerous character of the deceased, is not admissible without proof of an overt act of attack on the accused, and that the accused was in imminent danger therefrom.^ In Commonwealth v. Mead^ it is said that in a trial for manslaughter, evidence that the deceased was a man of great muscular strength, and practised in seizing persons by the throat in a peculiar way, which would at once render them helpless, and shortly take away life, is inadmissible for the defendant. And the charac- ter of the deceased for violence, a quarrelsome disposition, (1884) ; May v. People, 8 Colo. 210 (1885) ; s.c. 6 Cr. L. Mag. 692 , 6 Pac. Rep. 816 ; Drake r. State, 75 Ga. 413 (1885) ; Patterson v. State, 66 Ind. 185 (1879) ; State v. Riddle, 20 Kan. 711 (1878) ; State v. Jackson, 37 La. An. 896 (1885) ; State v. Jan- vier, 37 La. An. 645 (1885) ; State v. Labuzan, 37 La. An. 489 (1885); State V. Ford, 37 La. An. 443 (1885) ; State f. Watson, 36 La. An. 148 (1884); Commonwealth v. Mead, 78 Mass. (12 Gray) 167 (1858) ; s.c. 71 Am. Dec. 741 ; State v. Brown, 63 Mo. 439 (1876); State v. Elkins, 63 Mo. 159 (1876) ; Abbott v. People, 86 N. Y. 460 (1881) ; Tliomas v. People, 67 N. Y. 218 (1876) ; Marts v. Stnte, 26 Ohio St. 162 (1875) ; West v. State, 18 Tex. App. 640 (1885) ; Plasters v. State, 1 Te.v. App. 673 (1877). On the trial of P. for the mnrder of W. by the discharge of a pistol while being wrenched from W.'s hands by P. and others, it was held that P. could not properly be allowed, for the purpose of showing that certain wounds upon W.'s person, not contrib- uting to his death, had been received prior to the assault, to prove that W. had been intoxicated, violent, and quarrelsome during the day on which he was killed. Patterson v. State, 66 Ind. 185 (1879). 1 Dupree v. State, 33 Ala. 380 (1859) ; Franklin c. State, 29 Ala. 14 (1856); Campbell v. State, 38 Ark. 498 (1882); Newcomb v. State, 37 Miss. 383 (1859) ; Peoi>le v. Druse, 103 N. Y. 655 (1886) ; s.c. 9 Cr. L. Mag. 88; 5 N. Y. Cr. Rep. 10; 3 N. Y. St. Rep. 617; 8 N. E. Rep. 733; Nichols V. People, 23 Hun (N. Y.) 165 (1880) ; McKenna i-. People, 18 Hun (N. Y.) 580 (1879); Alexander v. Common- wealth, 105 Pa. St. 1 (1884); s.c. 5 Cr. L. Mag. 829. 2 Xewcomb v. State, 37 Miss. 383 (1859). State, 33 Ala. 380 V. Moan, 65 Cal. 532 •^ Dupree (1859). ■* People (1884). 5 State V. Jackson, 37 La. An. 896 (1885) ; State v. Janvier, 37 La. An. 645 (1885) ; State v. Labuzan. 37 La. An. 489 (1885) ; West v. State, 18 Tex. App. 640 (1885). * G 78 Mass. (12 Gray) 167 (1858) ; s.c. 71 Am. Dec. 741. 460 HOMICIDE. [chap. XXII. &c., many years before in a foreign country, is immaterial, and evidence thereof is properly rejected.^ In a trial for murder it is incompetent for the accused to prove that the general character of the deceased for honesty was bad. Such evidence could neither explain the actions of the deceased at the time he was killed nor show that the accused committed the homicide in self-defence, or under circumstances justifying it.^ Thus in the case of People v. Druse,^ at the trial of an indictment for murder, the only defence being justification, evidence was offered by the defendant that the deceased treated his domestic animals with cruelty ; and that he robbed his father, when in his coffin, of his grave clothes and wore them at his funeral. The court held that this evidence was properly excluded under the rule that, after evidence has been given by a defendant, tending to shovir that the homicide was committed in self-defence, he may follow it by proof of the general repu- tation of the deceased for quarrelsomeness and violence, but evidence of specific acts is inadmissible. Uncorroborated testimony of a single witness to the fact that the deceased began the conflict in which he was killed, contradicted by other witnesses, and disbelieved by the judge a quo, does not establish such foundation as to render evi- dence of the deceased's bad and dangerous character ad- missible.* Sec. 422. Same — Where defendant the agrgressor. — Where the defendant is the aggressor, he will not be permitted to show the character, habits, and disposition of the deceased, because these will not excuse his act or palliate his crime.^ Thus where the evidence showed that the accused pursued the deceased with a drawn knife, with which he gave the mortal stroke, it was held that evidence of the dangerous character 1 May y. People, 8 Colo. 210 (1885); * State v. Ford, 37 La. An. 443 s.c. 6 Cr. L. Mag. 692; Pac. Kep. (1885). 816. 5 See Drake v. State, 75 Ga. 413 2 Plasters v. State, 1 Tex. App. 673 (1885) ; State v. Watson, 36 La. An. (1877). 148 (1884) ; Abbott v. People, 86 3 103 N. Y.«055 (1886) ; s.c. 9 Cr. N. Y. 460 (1881) ; Thomas v. People, L. Mag. 88; 5 N. Y. Cr. Rep. 10; 3 67 N. Y. 218 (1876). N. Y. St. Rep. 617 ; 8 N. E. Rep. 733. SEC. 423.] EVIDENCE — COMPETENCE. 461 of the deceased was properly excluded.^ In Abbott v. People,^ which was the trial of an indictment for murder, the deceased having been struck and killed with an iron wrench, evidence of the reputation of the deceased as being quarrelsome was held to have been properly excluded, where no assault or threat on the part of the deceased had been made, and where there could be no pretence that the blow was struck in self- defence. And it is said in Drake v. State ^ that where the evidence tends to show that the defendant killed his wife with an axe and cut her throat, evidence that she had a vio- lent temper is properly rejected. Sec. 423. Tlireats of defendant. — On the trial of an indictment for murder, proof of previous threats by defendant against the deceased is competent as showing malice, and if made long enough before the homicide, as evidence of pre- meditation and deliberation.* Thus it has been said that 1 State V. Watson, 3G La. An. 148 (1884). 2 86N. Y. 460 (1881). 3 75 Ga. 413 (1885). * Harrison v. State, 79 Ala. 29 (1885); Jordon v. State, 79 Ala. 9 (1885) ; Anderson v. State, 79 Ala. 5 (1885); Jones v. State, 76 Ala. 8 (1884); Redd v. State, 68 Ala. 494 (1881) ; Marler v. State, 67 Ala. 55 .(1880) ; s.c. 42 Am. Rep. 95 ; Johnson V. State, 17 Ala. 618 (1850) ; Pitman V. State, 22 Ark. 354 (1860) ; Dunn v. State, 2 Ark. 229 (1839) ; s.c. 35 Am. Dec. 54;. State v. Hoi/t,47 Conn. 518 (1880) ; s.c. .36 Am. Rep. 89; State v. Hoyt, 46 Conn. 330 (1878) ; State v. Al- ford, 31 Conn. 40(1862); State y. Green, 1 Houst. Cr. Cas. (Del.) 217 (1866) ; Dixon V. State, 13 Fla. 6.36 (1871) ; Everett v. State, 62 Ga. 65 (1878) ; Westbrook v. People, 126 111. 81 (1888) ; s.c. 18 N. E. Rep. .304 ; School- craft V. People, 117 111. 217 (1886); s.c. 7 N. E. Rep. 649; Goodwin v. State, 96 Ind. 550 (1884) ; State v. McCahill, 72 Iowa, 111 (1887); s.c. 9 Cr. L. Mag. 37 ; 30 N. W. Rep. 553 ; 33 N. W. Rep. 599 ; Brewer v. Com- monwealth (Ky.), 8 S. W. Rep. 339 (1888) ; Short v. Commonwealth (Ky.), 4 S. W. Rep. 810 (1887) ; Smith V. Commonwealth (Ky.), 4 S. W. Rep. 798 (1887) ; Hart v. Commonwealth, 85 Ky. 77 (1887) ; s.c. 2 S. W. Rep. 673; Nichols v. Commonwealth, 11 Bush (Ky.) 575(1875); State r. Bird- well, 36 La. An. 859 (1884) ; Riggs i-. State, 30 Miss. 635 (1856); State v. Partlow, 90 Mo. 608 (1886) ; s.c. 59 Am. Rep. 31 ; State v. Grant, 79 Mo. 113 (1883); s.c. 49 Am. Rep. 218; State V. Adams, 76 Mo. 355 (1882) ; State V. Nugent, 71 Mo. 1-36 (1879) ; s.c. 8 Mo. App. 563 ; State v. Guy, 69 Mo. 430 (1879) ; State v. Hymer, 15 Ncv. 49 (1880) ; State v. Wentworth, 37 N. H. 196 (1858) ; LaBeau v. Peo- ple, 34 N. Y. 223 (1866) ; Friery v. People, 2 Abb. App. Dec. (N. Y.) 215 (1866) ; Jefferds v. People, 5 Park. Cr. Cas. (N. Y.) 518, 522 (1861); State V. Rash, 12 Ired. (N. C.) L. 382 (1851); s.c. 55 Am. Dec. 420; State V. Hildreth, 9 Ired. (N. C.) L. 429 (1849); s.c. 51 Am. Dec. 364; State V. Shepherd, 8 Ired. (N. C.) L. 195 (1847). Compare Minims r. State, 16 Ohio St. 221 (1865) ; Stewart v. State, 1 Ohio St. m (1852) ; Hopkins v. Com- monwealth, 50 Pa. St. 9 (1865); s.c. 88 Am. Dec. 518 ; State v. Belton, 24 462 HOMICIDE. [chap. XXII. evidence is admissible on the part of the state that the defendant, after an altercation with the deceased, said : " 111 kill him before day, God damn him," although the defendant had o-one away from the deceased.^ And it is said in the case of State v. McCahill ^ that in a trial for murder where it is shown that a mob of miners on a strike, in carrying out a conspiracy to drive away new men who had been brought there to work the mines, surrounded the house in which the deceased was, and fired shots into the house, and inside of it, killing the deceased, evidence of threats to kill a superin- tendent of the mines who was in the house, followed by immediate firing, made during the attack but subsequently to the killing of the deceased, is admissible, as showing the desperate character of the mob, and that murder was part of their programme. The rule has been declared by a number of well-considered cases that the threats may be admissible, although they were not directed toward any particular person ; ^ such as threats S. C. 185 (1885) ; s.c. 58 Am. Rep. 245 ; Heath v. Commonwealth, 1 Rob. (Va.) 735 (1842); White v. Territory, 3 Wash. Tr. 397 (1888) ; s.c. 19 Pac. Rep. 37; Benedict v. State, 14 Wis. 423 (1861) ; United States v. Never- son, 1 Mackey (D. C.) 152 (1880). See Alston v. State, 63 Ala, 178 (1879); Dixon v. State, 13 Fla. 636 (1871); Cluck v. State, 40 Ind. 263 (1872) ; State v. Sterrett, 71 Iowa, 386 (1887) ; Johnson v. Commonwealth, 9 Bush (Ivy.) 224 (1872); People r. Curtis, 52 Mich. 616 (1884) ; State v. Downs, 91 Mo. 19 (1886) ; s.c. 3 S. W. Rep. 219; Carr v. State, 23 Neb. 749 (1888) ; s.c. 37 N. W. Rep. 630 ; State V. Barfield, 7 Ired. (N. C) L. 299 (1847) ; Moore i-. State, 2 Ohio St. 500 (1853) ; Abernethy v. Common- wealth, 101 Pa. St. 322 (1882) ; Max- well )-•. State, 3 Heisk. (Tenn.) 420 (1872) ; Lander v. State, 12 Tex. 462 (1854) ; Phillips v. State, 22 Tex. App. 139 (1887); s.c. 2 S. W. Rep. 601. 1 State V. Guy, 69 Mo. 430 (1879). 2 72 Iowa, 111 (1887) ; s.c. 9 Cr. L. Mag. 37 ; 30 N. W. Rep. 553. 3 Harrison v. Slate, 79 Ala. 29 (1885) ; Jordon i-. State, 79 Ala. 9 (1885) ; Anderson v. State, 79 Ala. 5 (1885). See State v. Hoyt, 47 Conn. 518 (1880); s.c. 36 Am. Rep. 89; Dixon V. State, 13 Fla. 636 (1871); State V. Grant, 79 Mo. 113 (1883) ; s.c. 49 Am. Rep. 218; State v. Hymer, 15 Nev. 49 (1880) ; State v. Belton, 24 S. C. 185 (1885) ; s.c. 58 Am. Rep. 245^ Benedict v. State, 14 Wis. 423 (1861). 1 A remark made by the defend- ant a few days before the homicide, after speaking of his father, that he did not know but he should kill some one witliin a week, was held to be admissible against him as a threat, and as showing a revengeful and murderous spirit. State v. Hoyt, 47 Conn. 518 (1880) ; s.c. 36 Am. Rep. 89. See Hopkins v. Common- wealth, 50 Pa. St. 9 (1865); s.c. 88 Am. Dec. 518; Benedict v. State, 14 Wis. 423 (1861). In Abernethy V. Commonwealth, 101 Pa. St. 322 1882), the defendant had a quar- rel with K., which much excited the defendant, who made threats to kill K. or somebody, and borrowed a pis- tol. Later in the day, the defendant SEC. 423.] EVIDENCE COMPETENCE. 463 against " some one," ^ * "a policeman," ^ " the Deans," ^ or " two or three men." * But where the threats specify the person against whom they are made, they are not admissible against the defendant npon trial for killing another person ; ^ and they need not have been to commit any specific act or injury if they tend to show a malicious condition of the defendant's mind. Thus in >Schoolcraft v. People ^ testimony that the defendant said, in speaking of a difficulty that he had had with the deceased, that he was "part Indian; bad medicine," and that something serious would grow out of this trouble, was held admissible, as tending to show a threat. And where a threat is specific, the fact that the injury was threatened to be done by other means than the evidence shows to have been used in the commission of the homicide, will not render it incom- petent. Thus in La Beau v. People " it is said that on the trial of a prisoner for the crime of murder by poisoning, it is com- petent to prove that he had threatened injury to the deceased with other instruments, — for example, a slung-shot, — as tend- ing to prove the animus of the prisoner towards the deceased. Conditional threats made hy the prisoner are admissible in evidence,^ and their competency will not be affected by their nearness or remoteness.^ had a quarrel vvithB.,wliom ho shot and (1880), the prosecution introduced killed. The court held that evidence of evidence showing that three hours his threats to kill K. or somebody was before the liomicide, the defendant, inadmissible upon his trial for killing while in a bar-room, exclaimed : " This B., with wliom he had had no quarrel is the first time I have been drunk at the time he uttered the threats. since I have lieen in town. I got 2 On a trial for the murder of a police- drunk just to kill two or three men man, proof is admissible of threats of in this town to-night, and I'll do it, violence made by the accused sliortly too." The court held the evidence ad- before the homicide against "police- missible, as tending to show that the men," thougli not particularly against defendant had tlie deceased in his mind the deceased. Dixon r. State, 13 Fla. at the time of uttering the tlireats. 636 (1871) ; State v. Grant, 79 Mo. 113 » Carr v. State, 23 Neb. 749 (1888) ; (1883) ; s.c. 49 Am. Picp. 218. s.c. 37 N. W. Kep. 630. 3 In State v. Belton, 24 S. C. 185 ^ 117 111. 271 (188G) ; s.c. 7 N. E. (1885) ; s.c. 58 Am. Rep. 245, the de- Eep. 649. fendant had threatened " the Deans." ^ 34 N. Y. 223 (1866). On his trial for the murder of one of ^ State v. Adams, 76 Mo. .355 the family, the court held that evi- (1882); s.c. 4 Am. Cr. Kep. 392; dence of this threat was admissible, State v. Johnson, 76 Mo. 12 (1882). although defendant's quarrel was with ^ State z-. Adams, 76 Mo. 355 (1882) ; other members of the family. s.c. 4 Am. Cr. Rep. 392. See State * In State v. Hymer, 15 Nev. 49 t-. Hoyt, 46 Conn. 330 (1878) ; Keener * Foot-uote 1 begins on preceding page. 464 HOMICIDE. [chap. XXII. It is immaterial to whom the threats were made, or whether they were made to any particular person. Threats made by defendant while talking to himself may be admissible, and the threats may be proved by any person who heard them uttered.^ It is immaterial how long before the homicide the threats were made, as the remoteness of their utterance goes to their weight and not to their competency.^ Thus in Smith V. Commonwealth - a witness was permitted to testify that the defendant, while drunk and alone, talked to himself and threatened to kill the deceased, and the court held this evidence properly admissible, as tending to show the state of defendant's feeling toward the deceased. In the case of Short V. Commonwealth ^ a witness was permitted, against the defendant's objection, to testify that while the witness was in the front room, and the accused was with the deceased and several persons, in the back room, immediately before the affray, he heard a conversation containing insults and threats, and that soon thereafter th« deceased and the accused, with other persons, passed through the room where the Avitness was, " out into the crime.'' The court held that said testi- mony was admissible, though the witness could not, while in the front room, see any of the parties, or recognize the voices ; that the accused was sufficiently connected with the conver- sation by the portion of the testimony in italics. Sec. 424. Same — Time of threats. — There is no pre- scribed limit to the time before the homicide in which the threats must have been made in order to render them admis- sible in evidence.* Thus it has been said that where the threats by the accused against the life of the deceased were made thirty days before the homicide, it affects their Aveight, and not their admissibility.'^ In Everett v. State,^ on the trial of E. for the murder of F., who had been his paramour, there V. State, 18 Ga. 194 (ISoa) ; State v. ^ 4 s. W. Rep. (Ky.) 708 (1887). Ford, 8 Strobh. (S. C.) L. 517 (iioH') •'' 4 S. W. Hep. (Ky.) 810 (1887). (1839). * See State r. Hoyt, 40 Conn. 330 1 See Eedd v. State, 08 Ala. 404 (1878); Everett v. Slate, 02 Ga. 05 (1881); State ;-. Hoyt, 40 Conn. 330 (1878); Jefferds c. People, 5 Park. (1878) ; Everett v. State, 62 Ga. 05 Cr. Cas. (N. Y.) 522 (1801). (1878); Goodwin v. State, 90 Ind. & Goodwin r. State, 90 Ind. 550 550 (1884) ; Jefferds v. People, 5 Park. (1884). Cr. Cas. (N. Y.) 522 (1801). e 62 Ga. 05 (1878). SEC. 425.] EVIDENCE — COMPETENCE. 465 was evidence that, on the evening of her death, she had been escorted by another muhitto, who was becoming attentive to her. A threat by E. that he wouhl sooner kill F. than see her married to any other man than himself, was held admis- sible in evidence, although made more than a year before the killing. In the case of Jefferds v. People,^ the court admitted evidence of threats made by the prisoner two years prior to the homicide, and this ruling was sustained on appeal. The court saying that long-continued animosity and ill-will are better evidence of a state of mind which would ripen into deliberate nuirder than the hasty ebullition of passion. ]\lurder is not unpremeditation, and the motives for such an act are not the less powerful because they are the result of ill-feelings enter- tained for 3-ears. And in State v. Hoyt ^ evidence was intro- duced, showing that thirteen years before the homicide, the accused said that he would like to put a ball through the head of the deceased, and that he had made like declarations three or four years before the homicide, and the appellate court held that the evidence was admissible, and that the re- moteness of time went solely to the weight to be attached to it. Sec. 425. Acts of defendant — ^"Before the homicide. — Evidence of prior acts of the defendant, though they are not shown to be a part of the res gestce, is admissible when such acts legitimately tend to establish motive or intention in the defendant to commit the crime with which he is charged ; and such evidence is admissible for that purpose only.^ Its admissibility is not limited as to the time or place of the act or acts, but they may be shown whenever they will serve to cast light upon the question whether the defendant committed the homicide, or whether he did it with malice or with pre- meditation and deliljeration. Thus where the parties were together previous to the homicide, the defendant's whole conduct from the time of the meeting until the consumma- tion of the crime may be shown ; * proof of menaces towards the deceased is always legitimate evidence ; ^ and occurrences^, 1 5 Park. Cr. Cas. (N. Y.) 522 * See People v. Potter, 5 Mich. 1 (1801). (1858) ; s.c. 71 Am. Dec. 663. 2 46 Conn. 330 (1878). ^ Anderson v. State, 15 Tex. App. 3 State V. Edwards, 34 La. An. 447 (1884). 1012 (1882). 30 466 HOMICIDE. [chap. XXII. not necessarily connected with the deceased, occurring nearly at the same time, ma}^ be proved to show a desperate, reck- less, or mischievous state of mind in defendant.^ Previous maltreatment of the deceased by the accused may aid to raise a powerful presumption of malice, especially if of the same nature of the fatal assault ; ^ and other acts of violence may also be proved on the trial of an indictment for manslaughter. Thus on the trial of an indictment for manslaughter, by hauling the deceased by the hair of the head, and throwing her violently upon a sofa, other acts of violence upon the same evening may be shown.^ Proof that the defendant purchased or carried deadly weapons may also afford a presumption of malice ; and where such proof is made, it is immaterial that carrying weapons is a general custom within the locality where the homicide was committed. But the defendant should be allowed to explain his motive in carrying such a weapon.* Where the defendant sets up certain facts in mitigation, it is admissible to show previous acts committed by him, although remote and inconsistent with the existence of such facts. Thus in State v. Bryant,'^ testimony was introduced showing the wild action and demeanor of the defendant, and that it had been aggravated by the belief that the deceased had de- bauched the defendant's wife. The state introduced testi- mony that prior to his marriage, he wanted to rent a room in which he proposed to keep the woman he afterwards married, for the purpose of general prostitution for his pecu- niary benefit. The appellate court held that tlie evidence was properly admitted. But it is not proper to prove actions not in any way con- nected with the homicide, and which could not have had any influence in its commission.'^ Thus in United States v. 1 Kernan r. State, 05 Md. 253 (1883) ; Creswcll v. State, 14 Tex. (1885) ; s.c. 3 Atl. Rep. 124. App. 1 (1884). ^ 2 See Williams v. State, G4 Md. ^ 90 Mo. 273 (1887); s.c. OS. W. 384 (1885); s.c. 1 Atl. Kep. 887; Rep. 102. State V. Rash, 12 Ired. (N. C.) L. 382 '^ See Commonwealth v. Campbell, (1851); s.c. 55 Am. Dee. 420; Stone 80 Mass. (7 Allen) 541 (18(33); s.c. r. State, 4 Humph. (Tenn.) 27 (1843). 83 Am. Dec. 705; United States v. 3 State ;;. Pike, 05 Me. Ill (1876). Kinir, 34 Fed. Rep. 302 (1888). * See State v. Brown, 75 Me. 450 Where the wife of O., the deceased, SEC. 426.] EVIDENCE — COMPETENCE. 467 King,^ it appeared on the trial of a private soldier charged with murder committed by him on a military reservation, that the soldiers stationed there were frequently allowed to go out and come in without a pass. It was also in evidence that there were many saloons in the neighborhood. The court held that this fact should not w^ork to the prejudice of the accused, who had availed himself of the privilege on the night of the murder. In an indictment for murder, committed during a riot in Avhich the prisoner was engaged, evidence to prove other riotous acts by him at a different place, and several hours earlier, is not competent unless it is first shown that the various acts were all parts of one continuous transaction.^ And in the trial of an indictment for murder by poison, in which one count alleges that the deceased was pregnant, and was induced to take the poison by assurance of the defendant that it was a medical preparation which would produce a miscarriage, evidence of a conversation two or three years before the time of the acts charged, in which the defendant applied to a witness for information upon the subject of pro- curing abortions, is inadmissible.'^ Sec. 426. Same — Evidence of other crimes. — Where two persons are killed at the same time and place, and appar- ently in the same transaction, or approximately so, evidence as to the circumstances of the killing of one is admissible on the trial of an indictment for the killing of the other , * and such is also the case where there is evidence to prove that another person, killed at a different time and place, was murdered, as a part of the same deliberate plan, and for the was the only witness to the killin?, it IMass. (7 Allen) 541 (1863) ; s.c. 83 was held erroneous to allow her to Am. Dec. 705. t.estify that a few minutes before G., ^ Commonwealth v. Hersey, 84 the accused, shot 0., he made inde- Mass. (2 xVUen) 173 (1861). cent proposals to her, O. not being * Brown i\ Commonwealth, 76 Pa. apprised of the fact, and there being St. 319 (1874) ; Commonwealth v. nothing to indicate that it influenced Ferrigan, 44 Pa. St. 386 (1863). See the acts of either 0. or G. Gardner People v. Foley, 64 Mich. 148 (1887) ; V. State, 11 Tex. App. 265 (1882). s.c. Cr. L. Mag. 345 ; 31 N. W. Rep. 1 34 Fed. Rep. 302 (1888). 94; Fernandez v. State, 4 Te.x. App. 2 Commonwealth v. Campbell, 89 419(1879); Heath r. Commonwealth, 1 Rob. (Va.) 735 (1842.) 468 HOMICIDE, [CIIAP. XXII. same purpose, and with the same motive, as was the person for whose murder the defendant is on triaL^ In Fernandez v. State,^ on a trial for the murder of one of two travelling companions whose bodies were found about a mile apart, evidence of the condition in which the body of the other Avas found was held to be admissible, there being proof that they were murdered in the same onset. In People V. Foley ,'^ on the trial of an indictment for murder of one of two infants, where it appeared that the infants were twins, and that both were put into one crib at niglit in good health, and both found dead in the morning with similar marks on each, testimony showing the death of the other infant, and the appearance of its body, is properly admitted on the ques- tion whether the one for the killing of which the indictment was found came to its death by violence, as from the circum- stances it is apparent that they both came to their death in the same manner. In Heath v. Commonwealth* evidence was offered that the prisoner, on the same day that the deceased was killed, and shortly before the killing, shot a third person. Tlie court held that the evidence was admis- sible, under the circumstances of the case, though it tended to prove a distinct felony committed by the prisoner ; such shooting and the killing of the deceased appearing to be connected as parts of one entire transaction. In the case of Commonwealth v. Robinson,^ at the trial of the defendant for the murder of her brother-in-law A., the government offered evidence to prove that A.'s wife, who was the defendant's sister, had died ; that before her death, the defendant had formed a scheme to secure certain insurance on the life of A., which was then payable to his wife ; that, as a part of sucli scheme, the defendant had determined to kill her sister, then to induce A. to assign the insurance to her (the defendant) and then to kill A. The court correctly ruled that if evidence sliould be offered and admitted tending to show that tlie defendant knew, before her sister's death, of tlie existence of the insur- ^ See Cominonvvealtli v. llobinson, -4 Tex. App. 410 (187!)). 140 Mass. 571 (1888); s.c. 10 Cr. L. » ei Mich. 148 (1887); s.c. 9 Cr. Mag. 544; 16 N. E. Rep. 452. Com- L. Mag. 845, 81 N. W. Rep. 04. pare Sliaffner v. Comnionwealtli, 72 * 1 Rob. (Va.) 785 (1842). Pa. St. GO (1872); s.c. 18 Am. Rep. ^ 140 Mass. 571 (1888) ; s.c. 10 Cr. 649; 2 Gr. Cr. Rep. 504. L. Mag. 544, 10 N. E. Rep. 452. SEC. 427.] EVIDENCE — COMPETENCE. 4G9 anee, and that it could be transferred on tlie latter's death to herself, and made payable to herself at A.'s death, then evidence might be offered that the sister died from poison administered by the defendant, as a part of her method of carrying out her intention, in connection with evidence that she poisoned A., as another part of the same plan, and with the same general intention. But proof of other homicides or crimes having no connec- tion with the one for which the defendant is on trial is ii rel- evant and inadmissible.^ The prosecution, however, may show other crimes leading to, or connected with, the homicide for which the defendant is on trial.^ Thus it has been said that upon the trial of an indictment for nuuder, evidence of an assault by the defendant with a pistol, at a place not far from the place of the homicide, and a very short time before the killing, is admissible as showing the general conduct of the defendant at the time , and that what was said and done by the others in company with him is also admissible.^ Sec. 427. Same — Acts after the homicide — Comluct and appearance indicating mental condition. — Where the charge that the defendant is the slayer is disputed, it is proper to show, for the consideration of the jury, the conduct and appearance of the defendant at or near the time of the com- mission of the homicide, as indicating his mental condition.* And for this purpose actions showing nervousness, excitement, or fear when first informed of, or charged with, the crime,^ 1 State V. Sterrett, 71 Iowa, 386 (1885); s.c. 4 Atl. Rep. 124; Wash- (1887). See State r. Martin. 74 Mo. fngton v. State, 8 Tex. App. 377 547 (1881). In a murder trial, two (1880). indictments against the accused for * See Clougii i'. State, 7 Neb. .320 felonious assaults, in no way con- (1878). nected with the homicide, were al- 5 State r. Nash, 7 Iowa, 347 (1858) ; lowed to be read. This was held to State v. Baldwin, 3(3 Kan. 1 (1886) ; be error. State v. Martin, 74 Mo, 547 s.c. 9 Cr. L. Mag. 49 ; 12 Pa. Rep. (1881). 318, affirmmg 7 Cr. L. Mag. 512; 2 See People v. Rogers, 71 Cal. 5G5 Miller v. State, 18 Tex. App. 2.32 (1887); Kernan i-. State, 65 Md. 253 (1885); Noftsinger v. State, 7 Tex. (1885); State v. Thomas, 98 N. C. App. 301 (1880). 699 (1887) ; s.c. 2 Am. St. Rep. 351 ; The demeanor of one charged with 10 Cr. L. Mag. 443,- 4 S. E. Rep. 518 ; crime, at or near the time of its corn- Washington V. State, 8 Tex. App. 377 mission, or of his arrest for the same, (1880). may always be shown ; and the testi- 3 Kernan v. State, 65 Md. 253 mony of the officer who subpoenaed 470 HOMICIDE. [chap. XXII. or silence,^ or conduct manifesting a lack of concern at the death of deceased, where deep sorrow is natural and to be expected,^ may be proved against the defendant. Thus it has been held that evidence is admissible upon the trial of one for the murder of his Avife, to show that on the mornino- after the murder he manifested no concern and shed no tears.3 And it has been said that whether the defendant manifested evidence of grief on account of his sister's death was a proper inquiry for the state. Such inquiry, however, must be confined to a reasonable time after the death, or its discovery; an inquiry relating to his conduct covering a period of four months thereafter, is an unreasonable time ; but where the defendant was not prejudiced theieby, it will not be ground for reversal of the conviction."* Sec. 428. Same — Flight or escape. — On a trial for homicide, it is alwaj^s proper to show, as circumstances tend- ing to prove the defendant's guilt, that he fled after its com- mission,'^ and the action of officers in seeking him to arrest and took tlie defendant . before the coroner's jury, that "he was very nervous and showed a great deal of fear," is admissible. State v. Bald- win, 36 Kan. 1 (1886) ; s.c. 9 Cr. L. Mag. 49; 12 Pac. Rep. 318; affirming 7 Cr. L. Mag. 512. And one who met, three-quarters of an hour after a murder, the person indicted for hav- ing committed it, may testify that lie appeared excited. Miller v. State, 18 Tex. A pp. 232 (1885). The rule admitting evidence of any peculiarity of conduct of the accused, however slight, whore the evidence is wholly circumstantial, applied, in a trial of a clerk for murder, to mis- takes made by the accused in selling goods, and apparent preoccupation or absence of mind. Noftsinger v. State, 7 Tex. App. 301 (1880). 1 State V. Reed, 02 Me. 129 (1874) ; O'Mara v. Commonwealth, 75 Pa. St. 424 (1874). The fact that one re- mains silent, when told that he is sus- pected of murder, may properly be considered by the jury as evidence of guilt. State v. Reed, 62 Me. 129 (1874). On the trial for murder, a witness testitied that he saw O.'s wife when she came where the body of the de- ceased lay ; and she said to 0., " If I had been at home this would not have happened," and that O. made no reply to this ; held to be a statement to tlie prisoner, to be judged by his conduct and not by the declarations of the wife only, and therefore to be a part of the res (jestce. O'Mara r. Common- wealth, 75 Pa. St. 424 (1874). - State V. Baldwin, 36 Kan. 1 (1886); s.c. 9 Cr. L. Mag. 49; 12 Pac. Rep. 318 ; affirming 7 Cr. L. Mag. 51 ; Greenfield v. People, 85 N. Y. 75 (1881) ; s.c. .39 Am. Rep. 636. 3 Greenfield v. People, 85 N. Y. 75 (1881) ; s.c. 39 Am. Rep. 636. * State r. Baldwin, 36 Kan. 1 (1886) ; s.c. 9 Cr. L. Mag. 49 ; 12 Pac. Rep. 318 ; affirming 7 Cr. L. Mag. 512. s People r. Giancoli, 74 Cal. 642 (1888) ; s.c. 16 Pac. Rep. 510; Batten r. State, 80 Ind. 394 (1H81) ; People V. Ogle, 104 N. Y. 511 (1887) ; s.c. 11 N. E. Rep. 53. It is said in People v. Giancoli, 74 Cal. 642 (1888) that iu SEC. 428.] EVIDENCE COMPETENCE. 471 may be sliown.^ But the defendant has the right to explain his flight, or prove tliat it was caused by some other occur- rence or some other matter ; ^ except where it is clearly and sufficiently proved that the homicide was the result of the defendant's act.^ To rebut the presumption arising from flight, a prisoner may show that his life was threatened by relatives of the deceased.^ And evidence of subsequent public excitement, to justify an anticipation of violence after a homicide, and tlius rebut a presumption of guilt from flight, is admissible, but the excitement must exist before the flight ; the interval may be so short that an apprehension cannot arise.^ In the case of People V. Ah Choy,^ upon a trial for murder, it was proved that the defendant struck the blow from which the death re- sulted, and the court held that the defendant could not be heard to complain that his explanations or his motive in run- ning away were not received in evidence, because such evi- dence could have no bearing upon the case. But it is incompetent for the defendant to prove his con- duct and statements in refusing to flee, where there is no evi- dence as to flight, or as to defendant's statements in regard thereto, offered by the prosecution.'' Proof of escape or attempts to escape, after arrest for the homicide, is also competent;^ but the defendant has the right to be heard in explanation, and the attempted escape may be tlie trial of an indictment for murder, * State v. Barham, 82 Mo. 67 an instruftioii that fliglit is not an (1884). inference of guilt, and tlie timid might ^ State v. Phillips, 24 Mo. 475 seek safety thereby, while innocent, (1857). was properly refused. « 1 Idaho, 317 (1870). 1 People V. Ogle, 104 N. Y. 511 ' .Jordan v. State, 79 Ala. 9 (1885) ; (1887). State v. Harris, 73 Mo. 287 (1880). 2 State V. Barham, 82 Mo. 67 « Hittneri-. State, 19 Ind. 48 (1862) ; (1884) ; State v. Pliillips, 24 Mo. 475 State y.Dufour, 31 La. An. 804 (1879); (1857) ; Arnold r. State, 9 Tex. App. State v. Sanders, 76 Mo. 35 (1882). 435 (1881). Upon a trial for homicide it ap- 3 On A.'s trial for murder the state peared that immediately after the proved that A. fled soon after the killing, the prisoner was seized by a killing. The court held that it was bystander, whom he attempted to stab error thereupon to exclude evidence in order to escape. The court held offered by A. that his flight was occa- that evidence of the attempt to stab sioned by a warning that his life was was admissible. State v. Sanders, 76 menaced by a mob. Arnold v. State, Mo. 35 (1882). 9 Tex. App. 435 (1881). 472 HOMICIDE. [chap, XXII. shown to have been from fear of immediate violence, and is not necessarily evidence of conscious guilt.^ Sec. 429. Declarations of defendant — Before homi- cide. — Declarations and statements made by the defendant, before the homicide, regarding matters connected therewith, are not admissible in his defence, unless they form a part of the res gestce;^ but where they tend to show a motive for com- mitting the homicide, or malice in its commission, they may be proved by the prosecution.^ Thus the declarations of the defendant when obtaining the weapon ^ or the poison^ are 1 Golden v. State, 25 Ga. 527 (1853). 2 See People v. Wynian, 15 Cal. 70 (1860) ; Lewis v. iState, 72 Ga. 164 (1883) ; s.c. 53 Am. Rep. 835 ; 5 Am. Cr. Kep. 381 ; State v. Walker, 77 Me. 488 (1885) ; s.c. 7 Cr. L. Mag. 73; 5 Am. Cr. Hep. 465; 1 Atl. Rep. .357 ; Stale v. Holcomb, 86 Mo. 371 (1885) ; .Johnson r. State, 22 Tex. App. 206 (1887) ; S'.c. 2 S. W. Rep. 602. 3 See Redd i: State, 68 Ala. 494 (1881) ; Evans v. State, 62 Ala. 6 (.1878) ; People v. Taylor, 30 Cal. 255 (1868) ; Sliaw v. State, 60 Ga. 246 (1878) ; Stafford f. State, 55 Ga. 592 (1876) ; Thompson v. State, 55 Ga.47 (1875) ; State v. Nash, 7 Iowa, 374 (1858) ; State r. Gillick, 7 Iowa, 287 (1858) ; State v. Crowley, 33 La. An. 782 (1881) ; Penn v. State, 62 Miss. 450 (1884) ; Newcomb r. State, 37 Miss. 383 (1859) ; State v. Stair, 87 Mo. 268 (1885) ; s.c. 56 Am. Rep. 449; State v. Ellis, 101 N. C. 765 (1888); s.c. 9 Am. St. Rep. 49; 7 S. E. Rep. 704 ; State v. Howard, 82 N. C. 623 (1880) ; Minims r. State, 16 Ohio St. 221 (1865) ; McMcen v. Commonwealth, 114 Pa. St. 300 (1886); s.c. 9 Atl. Rep. 878; 34 Pittsb. L. .1. 363 ; .Jones r. State, 4 Tex. App. 436 (1879). Upon a trial for murder, evidence that the prisoner had saiil tiiat if lie liad a cliance he wouhl take every cent tliat W. had, is admissible when taken in connection with proof tliat the deceased was an employe of W.'s and had charge of his money, and that this was known to the prisoner. Mimms i'. State, 16 Ohio St. 221 (1865). On the trial of 11. for murder of A., who was proved to have been robbed on tiie night of the murder, evidence that H., a year before the killing, said to a person, " Don't you reckon if any one was to run in on old man A. he would get a lot of money ? " was lield to be admissible as showing H.'s knowledge of the reputation that A. kept money in the house. State r. Howard, 82 N. C. 623 (1880). * In State v. Holcomb, 86 Mo. 371 (1885), it is said that on the trial of one for murder, it is not competent for liim to sliow by liis statement, made at the time he purcliased the pistol with which he killed the deceased, that liis purpose in buying it was to kill mad dogs. In People v. AVyman, 15 Cal. 70 (1860), the defendant was shown to liave borrowed a cliisel on the day of the murder. Tiie court held that his declarations as to wliat lie intended to do with tlie chisel, not being shown to liave any ap]-arent connection with tlie commission of the offence charged, were not admisisible as a part of the I'es (jester. It is said in McMeen r. Common- wealth, 114 Pa. St. 300 (1886); s.c. 9 Atl. Rep. 878 ; 34 Pittsb. L. J. 365, that it is competent, on tlie trial of a husband for the murder of his wife. SEC. 429.] EVIDE^X'E CUMrETENCE. 473 admissible as a part of the res gestoe. The expressions or declarations made at a time or shortly before the homicide are admissible in evidence where they tend to show the con- nection of the defendant with the crime. Thus the declara- tions made at the moment of the shooting ; ^ a proposal to rob the deceased; 2 declarations between two defendants while grind- ing their knives shortly before the homicide ;3 declarations by a husband beating his wife, though made four years before the homicide;* expressions or declarations showing enmity towards "white men";^ and statements concerning Masonic to show tlie relations between them prior and up to the time she took tlie poison wliioii causeil lier death, and to prove false and contradictory state- ments made by him as to the purchase of tlie poison and his whereabouts immediately afterwards. 1 In State v. Walker, 77 Me. 488 (1885); s.c. 5 Am. Cr. Rep. 4Go; 7 Cr. L. iMag. 73; 1 Atl. Hep. 357, the defendant being boisterously sere- naded on his wedding night, rose from his bed, and discharged his pistol through the side-light in the door, fatally wounding one of the serenad- ers. The court held that the defend- ant's statements to his father at the moment of shooting were admissible as a part of the res r/esht to show the motive of the shooting. 2 A witness may testify tliat she heard one of the accused say in the presence of the others that they were going to rob the deceased. The cred- ibility only, not the competency of the witness, is affected by the fact that she was an associate of the ac- cused. State r. Crowley, 33 La. An. 782 (1881). In Stafford v. State, 55 Ga. 592 (1876), it is said tliat upon a trial for murder, where the only in- centive to the act appears to have been robbery, it is competent to show that the defendant, a week or ten days prior to the homicide, proposed to a witness to rob an old man and woman who lived on the edge of a town, and who hail nmney " piled up." 3 See Diiprce v. State, .33 Ala. -380 (1859); s.c. 73 Am. Dec. 422; Hop- kins V. Commonwealth, 50 Pa. St. 9 (1805) ; s.c. 88 Am. l>ec. 518. In State V. Ellis, 101 N. C. 765 (1888); s.c. 9 Am. St. Kep. 49; 7 S. E. Kep. 704, on an indictment for murder, where it appeared that the prisoner and his brother went to the house of the deceased to wait until he came home ; that they had knives, which they sharpened, each turning the grindstone for the other, evidence that while the prisoner was grinding his knife both laughed, and the brother said, "Somebody will be surprised to- night," wiiich remark the prisoner re- peated, is admissible, the declaration being made shortly before the homi- cide, while both were engaged in a conversation of which it was a part, and which declaration the prisoner, by repeating, made his own. * In Shaw v. State, 60 Ga. 240 (1878), on trial of a husband for the murder of his wife, declarations by him that he had beaten her, and thought he had a right to do so, though made about four years before tlie homicide, were held to be admis- sible to show the probability of his committing the crime, it having been done partly by beating. ^ In Tiiompson v. State, 55 Ga. 47 (1875), in a prosecution for murder, it was held competent for the state to prove that the deceased challenged the vote of the defendant on the morn- ing of the day of the iiomicide, and that about an hour previous to the giving of the fatal wound the witness heard the defendant say that " he be 47-1 HOMICIDE. [chap. XXII. lodges,^ have all been admitted as showing motive or intent. A remark of the defendant to a witness, on seeing the deceased ride up to a church, two or three years before the killing, '• There is a man I cannot get along with," though of little weight of itself, was held in Evans v. State ^ to be rele- vant and admissible testimony, and properly admitted when the only objection urged is that it is not legal or lawful evi- dence. . But a remark by the defendant, a few days before the killing, that he " didn't mind killing a negro, if he fooled with him, any more than he would a buck rabbit," was held to be irrelevant in Redd v. State.-^ The writing of the defendant is sometimes admissible as showing guilt. Thus in State v. Stair,* on the arrest of a man and wife for murder, there was found in his pocket-book a paper with the following words in his handwriting : " Do you think it safe to kill them, and wrap them up in the clothes, and tell them that they went off in a buggy ? " And the court held that the writing was competent evidence against him, the proof tending to show that he acted on the suggestion contained therein ; but that it was not competent as against his wife, it not being shown by the state when it was written, or that she had any knowledge of it, and it not being proved to be a part of the res gestce. But declarations made prior to the homicide to kill some one else besides the deceased, are not admissible.^ And declarations of the accused during the continuance of cruel treatment, which resulted in death, are not admissible when of- fered by her to account for scars on the person of the deceased.^ And for the purpose of showing that the defendant had no damned if lie did not wish every white four montlis prior to the murder, the man in hell." accused, in soliciting him to join the 1 In Jones r. State, 4 Tex. App. 436 lodije, said any one who injured a (1879), on a trial for murder, there memher of it would pass away and was evidence tending to inculpate the be no more heard of. accused and several other meml)ers of ^ (52 Ala. 6 (1878). a colored Masonic lodge whereof he " 08 Ala. 492 (1881). was master; also expert testimony * 87 Mo. 268 (1885); s.c. 5G Am. that words pencilled upon a piece of Rep. 449. paper found pinned to tlie clothes of & Carr v. State, 23 Neb. 749 (1888) ; the deceased were in the handwriting s.c. o7 N. W. Rep. 630. of the accused. The court held that « Lewis v. State, 72 Ga. 164 (1883) ; a witness for the state might properly s.c. 53 Am. Rep. 835; 5 Am. Cr. Rep. be allowed to testify that, three or 381. SEC. 430.] EVIDENCE COMPETENCE. 475 deadly purpose of executing prior threats, it cannot be shown that, the night before he went to the place of the homicide, he told his mother that he was going to organize an enter- tainment.^ Sec. 430. Same — Decl.iratioii after the homicide — Pi'oof of by prosecution. — The voluntary declarations or extrajudicial admissions of one charged with a homicide, concerning its commission, are admissible in evidence against himself ; ^ such as declarations showing malice ^ or appre- hension,* as well as voluntary declarations made to third parties,^ to his pm-suers,*^ or to his keepers after apprehension and imprisonment.'^ 1 Johnson v. State, 22 Tex. App. 206 (1887) ; s.c. 2 S. W. Uep. 609. 2 United States v. Beebe, 2 Dak. 292 (1880). See Perkins v. State, 60 Ala. 7 (1877) ; McManus v. State, 36 Ala. 285 (1860) ; Aikin v. State, 35 Ala. .399 (1860) ; Eraser v. State, 55 Ga. .325 (1875); Goodwin i-. State, 96 Ind. 550 (1884); State v. Hinkle, 6 Iowa, .380 (1858) ; State v. Carroll, 31 La. An. 860 (1879) ; State v. Mikie, 81 N. C. 552 (1879) ; Moore v. State, 2 Ohio St. 500 (1853); Powers v. State, 23 Tex. App. 42 (1887); s.c. 5 S. \V. Rep. 153 ; Steagald v. State, 22 Tex. App. 464 (1886) , s.c. 9 Cr. L. Majj. 515; 3 S. W. Rep. 771 ; Brunei V. State, 12 Tex. App. 521 (1883) ; Clampitt V. State, 9 Tex. App. 27 (1881) ; Tooney v. State, 8 Tex. App. 452 (1880). Declarations made by the defend- ant to or in the hearing of a physician in professional attendance upon him do not, under the statutes of Texas, come within the class of privileged communications, and have been held both pertinent and admissible. Stea- gald r. State, 22 Tex. App. 464 (1886) ; s.c. 9 Cr. L. Mag. 515 ; 3 S. W. Rep. 771. Where the capacity of the horse, defendant is said to have been riding, for swiftness, is material on account of the distance he had to ride and the time within which he had to make it, his declarations are admissible about such capacity. Fraser v. State, 55 Ga. 325. 3 McManus v. State, 36 Ala. 285 (1860). See Clampitt i-. State, 9 Te.x. App. 27 (1881). ^ On a trial of A for the murder of B, evidence of A's doings and sayings, indicating apprehension on his own account because of B's condition, held admissible. Tooney v. State, 8 Tex. App. 452 (1880). « See Brunet v. State, 1-2 Tex. App. 521 (1883). *• In Powers v. State, 23 Tex. App. 42 (1887) ; s.c. 5 S. W. Rep. 153, it is said that the testimony of a witness that the defendant having fled on horseback immediately after the kill- ing, on being told by a bystander that the deceased was dead, the witness pursued him, and in about five minutes overtook him, and told him to hold up, if he did not he would kill him, and that the defendant, having held up, in reply to witness's statement that he must go back to town with him, that he had killed the deceased, stated if he did nobody saw him, is admissible as part of the res gestce, al- though the confession was made at the time when the defendant was under arrest and in fear of death. " In Perkins v. State, 60 Ala. 7 (1877), it is said that, on a trial for murder, the prisoner's voluntary offer to the jailer who had him in charge, 476 HOMICIDE. [chap. XXII. In Brunet v. State,^ immediately after the homicide the defendant voluntarily admitted to a witness that he had tired upon the deceased in self-defence, and proposed to surrender himself ; and the court held these declarations admissible as part of the res gestce. And it is said in McManus v. State, ^ that where it was shown that the deceased was killed by a blow from a brickbat in a fight with the prisoner, evidence is admissible to show that the prisoner returned to the scene of the fight about an hour after the blow was given, with a pistol in his hand, saying that he had come to kill the deceased.^ Sec. 431. Same — Proof of by defence. — As a general rule, no declarations made by the defendant a'fter the time of the commission of the homicide with which he is charged, are admissible in his favor, unless they form part of the res gestce.^ Thus a party on trial for murder is entitled to prove his declarations made at the time and place of the shooting. to tell all he knew about the homicide of which he was accused, if the jailer would promise that he should not be hurt for it ; and his similar offer to a fellow-prisoner, if the latter would promise never to tell any one else ; which proposals being rejected, no confessions were made b\' him, are admissible evidence for the prosecu- tion. In State v. Hinkle, G Iowa, 380 (1858), on a trial for murder by poi- soning the prisoner's wife witli strych- nine, evidence was admitted that, upon being asked, while in jail, whether he did not get arsenic to kill rats witli, tiie prisoner answered tliat he did, and being asked wiiero he got it, re- plied that it was none of the inquirer's business. The court held that these facts formed a link in the chain of proof, and were therefore admissible. 1 12 Tex. App. 521 (1883). '^m Ala. 285 (1860). '' In Clampitt v. State. Tex. Ajip. 27 (1881), on the trial of C. for the murder of M., testimony of A. tli;it M., after being mortnlly wounded l)y C, was carried to A.'s house; and that, on the next night afterwards, A. heard some one near the house say, " 1 wish I had a double-barrelled shot- gun ; I would turn both barrels loose in that room," and looking out saw C, and no otiier person, held to be ad- missible as tending to prove malice. •* State V. Brandon, 8 Jones (N. C.) L. 40.3 (1862); s.c. Law. Insan. 144. See Territory v. Clayton, 8 Mont. Tr. 1 (1888) ; s.c. 19 Pac. Rep. 293 ; State V. Tilly, 3 Ired. (N. C.) L. 424 (1843); Honeycutt r. State, 8 Baxt. (Tenn.) 371 (1875) ; Bonnard v. State, 25 Tex. App. 173 (1888) ; s.c. 8 Am. St. Rep. 431 ; 7 S. W. Rep. 802 ; Li/nch v. Slnte, 24 Tex. App. 350 (1887) ; s.c. 5 Am. St. Rep. 888 ; 6 S. W. Rep. 190 ; Gib- son r. State, 23 Tex. App. 414 (1887); Harrison v. State, 20 Tex. App. 327 (1880) ; s.c. 54 Am. Rep. 529; Pharr r.State,9Tex. App. 129(1881); s.c. 10 Tex. App. 485 ; Foster v. State, 8 Tex. App. 248 (1880) ; Shrivers v. State. 7 Tex. App. 450 (1880) ; Little r. Commonwealth, 25 Graft. (Va.) 921 (1874) ; State r. Abbott, 8 W. Va. 741 (1875); United States ;;. Never- son, 1 Mackey (D. C.) 152 (1880). SEC. 431.] EVIDENCE COMrETENCE. 4V7 wliicli caused the daatli of the party killed, because tlie declarations thus made form part of the res ijestce;'^- hut he cannot put in evideuce declarations made fifteen minutes or more after the homicide occurred, and after he had gone some distance from the place where the homicidj was committed, because they are no part of the res t/estte ; 2 neither can he be permitted to put in evidence his own account of the trans- action related immediately after it occurred, thougli no third person was present when the homicide was committed ; ^ or 1 See Thomas i-. State, 27 Ga. 287 (1859) ; Harrison ;■. State, 20 Tex. App. 327 (188G) ; Foster v. State, 9 Tex. App. 248 (1880) ; Little v. Com- monwcaltli,25 Gratt. (Va.) 921 (1874); "state V. Abbott, 8 W. Va. 741 (1875). In Little v. Commonwealth, 25 Gratt. (Va.) 921 (1874), it is said that on the trial of a prisoner for murder, a statement made by him to a person, a few minutes after tlie homicide was committed, and near to the place, and in the presence and hearing of eyewitnesses of the liomi- cide, wlio were not introduced as wit- nesses by the Commonwealth, should be admitted as evidence at the instance of the prisoner as part of the res qes1(e. In Harrison r. State, 20 Tex. App. .327 (1886), statements made by tlie de- fendant three or four minutes after he had shot the deceased, to the effect that he did it to "protect his wife and child," were held to be admissible in his defence, as of the res (jestce, and as explanatory of nearly similar state- ments made at about the same moment and introduced in evidence by the prosecution. And in Foster r. State, 8 Tex. App. 248 (1880), evidence offered by the defendant wlien on trial for murder, that within less than a minute after he shot the deceased, he, the defendant, exclaimed, " I would shoot any man who was trying to cut my throat," was held to be improperly excluded, because the ex- clamation was part of the res qestce. - See Doles v. State, 97 Ind. 555 (1884) ; State v. Johnson, .35 La. An. 908 (1883); Lynch v. State, 24 Tex. App. 350 (1887) ; s.c. 5 Am. St. Rep. 888; 6 S. W. Rep. 190; Gibson v. State, 23 Tex. App. 414 (1887); s.c. 5 S. W. Rep. 314. Declarations of the accused, made an hour after tlie time, and a mile from tiie place of tlie homicide, are not admissible as part of the res gesta. State V. Johnson, 35 La. An. 968 (1883). Evidence that on the night of the homicide the accused had, at a place at about a mile and a quarter from the scene of the killing, stated he had just been waylaid by the de- ceased, are not admissible as part of the res qestcp. Doles r. State, 97 Ind. 555 (1884). On a trial for murder the state proved the acts and declara- tions of the defendant just before and after the homicide. The court held that the defendant could not put in evi- dence his statements made to a wit- ness twelve days after the homicide with respect to the defendant's decla- rations at the time of the homicide. And the statute declaring that when a detailed act or declaration is given in evidence, any other act or declara- tion necessary to explain it may also be given in evidence, does not affect the case. Gibson >: State, 23 Tex. App. 414 (1887) ; s.c. 5 S. W. Rep. 314. 3 State V. Tilly, 3 Ired. (N. C.) L. 424 (184.3). See United States v. Neverson, 1 Mackey (D. C.) 152 (1880). 478 HOMICIDE. [chap. xxii. declarations that a confession of the homicide formerly made are false, and were made through fear.^ But where the prosecution has been permitted to prove a con- versation or declaration by the defendant, it is proper for him to put in evidence any other declaration necessary to make it understood, or to explain it.^ Thus it is held in Pharr v. State ^ that a statement made by the accused when arrested, thirty miles from the scene of the homicide, as to his purpose in abruptly departing, is not admissible in his behalf as part of the res gestoi ; but that where the state has elicited testimony that the accused claimed certain property found in his possession, and supposed to belong to the deceased, the defence has a right to show what the accused said about the killing, under a statute ^ declaring that, when part of a con-, versation has been given, the whole may be inquired into. And it is said in Shrivers v. State ^ that where, on a trial for murder, the state has been allowed, without objection, to prove what the defendant, after arrest and uncautioned, said respecting his possession of the deceased's pistol, that he should be permitted to prove any fact or circumstance, or any declaration made by himself at the time or immediately afterwards, tending to explain or impair such proof. Sec. 432. Same — Declarations of an accomplice. — The declarations of an accomplice are admissible in evidence against his fellows when they are either complete in them- selves, or accompany and explain acts for which others are 1 Honeycutt v. State, 8 Baxt. held that under the Texas Code of (Tciin.) 371 (1875). Criminal Procedure, article 751, pro- - See Territory v. Clayton, 8 Mont, vidinfj that wlien a detailed conversa- 1 (1888) ; s.c. 19 Pac. Kep. 20:5; tion is given in evidence, any otlier Bonnard v. State, 25 Tex. App. 173 declaration necessary to make it un. (1888); s.c. 8 Am. St. Rep. 431; 7 derstood, or explain the same, may S. W. Rep. 8(12; Pharr v. State, 9 also be given, the defendant was Tex. App. 129 (1881); s.c. 10 Tex. entitled to show that later on the App. 485; Shrivers v. State, 7 Tex. same evening he made a different App. 450 (1880). statement to his brother, and ex- In Bonnard v. State, 25 Tex. App. plained to him the reasons for making 173 (1888) ; s.c. 8 Am. St. Rep. 431 ; tlie former statement. 7 S. W. Rep. 802, shortly after the 3 (> 'Pex. App. 129 (1881) ; s.c. 10 defendant shot the deceased he made Tex. .App. 485. a false statement to certain persons ■* Tex. Code Cr. Proo., art. 751. about the shooting, which was given ^ 7 Tex. App. 450 (1880). in evidence by the state. The court SEC. 433.] EVIDENCE — COMPETENCE. 479 responsible ; but not where they are in the nature of narra- tives, descriptions, or subsequent confessions,^ And where two are jointly charged with one offence, if statements be made by one, the silence of the other, and his failure to make any explanation, cannot be introduced in evidence against him.- Sec 433. Confessions. — A confession made by the pris- oner is admissible in evidence against him only when made voluntarily, and not under the pressure of undue influence, exercised through menaces or threats or promises of reward, or immunity from prosecution.^ Such confession must be taken as a whole, and all together, for it is neither justice nor I'eason to accept the statements of the defendant as to his connection with the homicide, unless in its entirety and full signiticance.'* Thus a confession of homicide made to three armed men, upon their arresting and accusing the defendant, is involun- tary and inadmissible.^ All confessions under menace are inadmissible in evidence. In State v. Crowson,^ on the trial of an indictment for the 1 Gore V. State, 58 Ala. 391 (1877) ; Priest V. State, 10 Neb. 390 (1880) ; s.c. 6 N. W. Rep. 408 ; State v. Tliibeau, 30 Vt. 100 (1858). - Commonwealth v. McDermott, 123 Mass. 441 (1877) ; Commonwealth V. Walker, 95 Mass. (13 Allen) 570 (1866). ^ Lang v. State, 84 Ala. 1 (1887); S.c. 5 Am. St. Rep. 324 ; 4 So. Kep. 193; Steele v. State, 83 Ala. 20 (1887) ; s.c. 3 So. Rep. 547 ; Kelsoe v. State, 47 Ala. 573 (1872) ; Mose v. State, 36 Ala. 211 (18G0) ; Stafford v. State, 55 Ga. 592 (1876) ; Holsenbake v. State, 45 Ga. 43 (1872) ; State v. Sopher, 70 Iowa, 494 (1886) ; s.c. 9 Cr. L. Mag. 218; 30 N. W. Rep. 917 ; Huberts v. Commonwealth, 7 S. W. Rep. (Ky.) 401 (1888) ; People v. Couo-hlin, 67 Mich. 466 (1887) ; s.c. 35 N. W. Rep. 72 ; People v. Folei/, 64 Mich. 148 (1887) ; s.c. 9 Cr. L. Mag. 345; 31 N. W. Rep. 94; Alfred v. State, 37 Miss. 296 (1859) ; State v. Walker, 98 Mo. 95 (1888) ; s.c. 9 S. W. Rep. 646 ; People v. Deacons, 109 N. Y. 374 (1888) ; s.c. 16 N. E. Rep. 676; People v. Druse, 103 N. Y. 655 (1886) ; s.c. 9 Cr. L. Mag. 88 ; 8 N. E. Rep. 733 ; Murphy v. People, 63 N. Y. 590 (1876) ; State v. Crow- son, 98 N. C. 595 (1887) ; s.c. 4 S. E. Rep. 143; State v. Dildy, 72 N. C. 325 (1875) ; State v. Mitchell, Piiill. (N. C.) L. 447 (1868) ; Brown v. Com- monwealth, 76 Pa. St. 319 (1874) ; Maples V. State, 3 Heisk. (Tenn.) 408 (1872) ; Ake v. State, 31 Tex. 416 (1868) ; Ross v. State, 23 Tex. App. 689 (1887) ; s.c. 5 S. W. Rep. 184 ; Boyett V* State, 26 Tex. App. 689 (1886) ; s.c. 9 S. W. Rep. 275; State V. McDonnell, 32 Vt. 491 (1860) ; Yelm .Jim v. Territory, 1 Wash. Tr. N. S. 63 (1859). See Commonwealth V. Cuffee, 108 Mass. 285 (1871). * See 1 Greenl. Ev. (14th ed.) §218. 5 State V. Dildv, 72 N. C. 325 (1875). « 98 N. C. 595 (1887) ; s.c. 4 S. E. Rep. 143. 480 HOMICIDE. [chap. XXII. murder of a cliild by drowning, it appeared that the prisoner liad been told that she had to tell what she had done with the child, and that otherwise they would get after her about it. Evidence was admitted to show that the prisoner then accompanied a deputy sheriff to a stream, in wliich the body was afterwards found, and had said if any one wanted their negroes drowned to bring them to her. The court held that the confession was made under menace, and was not admissible. All forced confessions to officers are inadmissible in evi- dence. But it is said in Commonwealth v. Cuffee ^ that the fact that two officers had arrested a negro boy thirteen years old, without a warrant, searched and stripped him, confined him in a police cell, and questioned him for two hours with- out warning of his right not to answer, or offering to permit him to consult friends, did not render his confessions inad- missible, on the trial for murder ; and that it was for the jury to judge of the effect. And in Ross v. State ^ A., suspected of murder, on being brought to the marshal of police, was asked by the officer where he got the body that was taken by him to a certain place on a specified evening, and being satislied that he was evading, the officer said to him, " You are not telling the truth." Afterwards, the officer being informed that A. wished to tell all about the crime, said to him, " Go on now, if you want to make your statement." On the trial of A. for the murder his confession made under the circum- stances to the officer was held to be admissible in evidence, and did not contravene the rule prohibiting involuntary con- fessions. Sec. 434. Same — Kiiowlertgre of effect. — The confession should be made voluntarily and deliberately, and under cir- cumstances which show the calm condition of the mind, and consciousness of the effect of confessing the commission of the act charged.'"' In State v. Soplier* the supreme court of M08 Ma?s. 285 (1871). 811 (1846); People v. Foley, 64 2 23 Tex. App. 08!) (1887); s c. Midi. 148 (1887); s.c. 9 Cr. L.Mao;. 6 S. \V. Hep. 184. .",45; :n N. W. Rep. 94; Maples r. 3 See Steele v. State, 8-3 Ala. 20 State, :] Ileisk. (Tenn.) 408 (1872); (1887) ; s.c. P, So. Hep. 547; Brister Hawk. P. C. b. 2, c. 46, § P,, n. (2) ; 1 V. State, 26 Ala. 107 (1855) ; State r. Cliitt. Cr. L. 85; Joy on" Confessions, Soplier, 70 Iowa, 494 (1886); s.c. 9 100-109. Cr. L. Mag. 218; P,0 N. \V. Hep. 917 ; * 70 Iowa, 494 (1886) ; s.c. 9 Cr. Vaughn i: Ilann, IJ. Mon. (Ky.) L. Mag. 218; 30 N. W. Hep. 917. SEC. 435.] EVIDENCE — COMPETENCE. 481 Iowa held that on the trial of an indictment for murder, ' testimony of the officer who arrested the defendant, showing an admission made by him that he committed the crime, is competent when it appears that the admission was made voluntarily and Avithout the influence of hope or fear, and not even made in response to questions asked by the officers. Greenleaf says that evidence of verbal confessions of guilt is to be received with great caution, and adds : " Besides the danger of mistake, from the misapprehension of witnesses, the misuse of words, the failure of the party to express his own meaning, and the infirmity of memory, it should be re- collected that the mind of the prisoner himself is oppressed by the calamity of his situation, and that he is often influenced by motives of hope or fear to make an untrue confession." ^ It is said in ]\Iaples v. State ^ that a confession under notice to the accused that he could not be compelled to tell, and that his statement would be evidence against him, is admis- sible, although on being arrested, on a day previously, he had confessed to another person without such notice, and undei" advice that it might procure his release. Sec 435. Same — To whom made. — It is immaterial to- Avhom the confession is made, the weight of the evidence- setting it out being for the jury to determine.^ Where a defendant, who was charged with murder, while confined in a closed room with a man after arrest, made an im'probable statement as to the circumstances of the killing, and being afterwards told by the man's brother that his story was im- possible and would not be believed, that physicians would be put on the stand to refute it, and that he " must tell a straighter tale if- he hoped to be believed," thereupon made confessions, the court held they were admissible in evidence against him.^ A confession made by a defendant indicted for murder to a fellow-prisoner who was in jail for stealing, and who was 1 See 1 Grcenl. Ev. (14th cd.) Or. L. Mag. .345; .31 N. W. Rep. 94; § 214. ■ State v. Mitchell, Phill. (N. C.) L. 2 3 Heisk. (Tenn.) 408 (1872). 447 (1868) ; Brown ?\ Commonwealth, 3 See Steele v. State, 83 Ala. 20 70 Pa. St. 319 (1874). C1887) ; s.c. 3 So. Kep. 547 ; Stafford * Steele v. State, 83 Ala. 20 (1887) ; r. State, 55 Ga. 592 (1870) ; People r. s.c. 3 So. Rep. 547. Foley, 64 Mich. 148 (1887) ; s.c. 9 31 482 HOMICIDE. [chap. XXII. grossly irreligious, but who read the Bible and sang psalms to him, and told him that if he was guilty he had better confess and seek his God, is admissible.^ A confession of murder made to a fellow-prisoner after the latter's assurance that one criminal cannot testify against another, has been held by the North Carolina supreme court to be admissible in evidence against him.^ In Brown v. Commonwealth ^ a person confined in jail with the accused testified that he held a conversation with the accused through the soil-pipes, in which he confessed to the witness that he was guilty of the homicide charged, and that the witness knew that he was the accused from his voice, and the court held that the testimony was admissible ; its weight being for the jury. In the case of People v. Foley,* on the trial of an indict- ment for murder, it appearing that a full examination of the manner in which a written statement was obtained from the accused by the public prosecutor was gone into before it was admitted ; and the record disclosing no undue influence in obtaining it, and it futher appearing that the accused was one of the two persons who alone could have known of the facts of the homicide at the time it occurred, it was held that such statement was properly admitted in evidence against the accused. Sec. 436. Same — Confessions by accomplice. — Where two or more persons are jointly indicted for the same homi- cide, a confession by one, made in the presence of the others, can only affect him. It is not admissible in evidence against the others, and its proof, as against him, creates no proof or presumption against his co-defendant.^ And where statements are made by one of two jointly charged with an offence, the silence of the other, and his failure to make any explanation, is not to be used against him.*^ But it is said in Cobb v. 1 Stafford v. State, 55 Ga. 502 Tiiomi)snn, !)0 Mass. 444 (1808) ; Ake (1870). V. State, ?,\ Tex. 410 (1808); s.c. 30 •^ State V. Mitchell, riiill. (N. C.) Tex. 400 ; Spencer v. State, 31 Tex. L. 447 (1808). 04 (1808) ; Reg. v. Hinks, 1 Den. C. C. 3 70 Pa. St. 3in (1874). 84 (1845) ; Kex v. Turner, 1 Moo. *04 Mich. 148 (1887); s.c. 9 Cr. C. C. 347 (1832); Reg. v. Blake, 6 L. M:ig. 315, 31 N. W. Kep. 94. Q. R. 120 (1844) ; Rex i-. Appleby, 3 Mvelsoe r. State, 47 Ala. 573 Stark. 33 (1820). (1872); State r. Weasel, 30 Ln. An. '> rommonwenlth r. ]\IcDermott, ] t. 11. 910 (1878) ; Commonwealth v. 123 Mass. 441 (1887) ; Commonwealth SEC. 438.] EVIDENCE — COMPETENCE. 483 State 1 that where a defendant, who is jointly indicted for murder with another, who has pleaded guilty, is appealed to by that other who must know his guilt, if guilty, to confess the crime, and he simply refuses to confess, but does not deny his guilt, the circumstance may be given in evidence to the The declarations or confessions of an accomplice are re- ceivable against his fellows only when they are either com- plete in themselves, or accompany and explain acts for which the others are responsible : but not where they are in the nature of narratives, descriptions, or subsequent confessions.^ Sec. 437. Physical superiority of defendant. — Where, upon the trial of an indictment for homicide, the accused relies upon the plea of self-defence, it is proper for the prosecution to prove the great physical superiority of the defendant over the deceased as tending to rebut any inference of great danger of death or of bodily harm to the defendant from the deceased ; but otherwise the physical powers of the defendant are immaterial.^ Sec. 438. Same — Character and disposition of defend- ant. — Where there is a doubt whether the homicide was committed by the defendant, or whether his commission of it was felonious, it is competent for the defendant to prove his peaceable character and good reputation in any and all respects related to the subject-matter of the prosecution,* and V. Walker, 95 Mass. (1-3 Allen) 570 Dec. 93 ; Stephens v. People, 4 Park. (18G6). Cr. Cas. (N. Y.) 396 (1859) ; People v. 1 27 Ga. 648 (1859). Hammill, 2 Park. Cr. Cas. (N. Y.) 223 ; 2 Gore I'. State, 58 Ala. .391 (1877) ; (1855) ; Catiicart v. Commonwealth, 37 Priest V. State, .10 Neb. 393 (1880); Pa. St. 108 (1860). See People v. s.c. 6 N. W. Hep. 468 ; State v. Thi- Stewart, 28 Cal. 395 (1865) ; Murphy beau, 30 Vt. 100 (1858). v. People, 9 Colo. 435 (1886) ; s.c. 13 3 See Hinch v. State, 25 Ga. 699 Pac. Rep. 528; Davis v. State, 10 Ga. (1858). 101 (1851); McCarty i-. People, 51 4 Dnpree v. State, 33 Ala. .380 111. 231 (1809) ; Achey v. State, 64 (1859); s.c. 73 Am. Dec. 422; Hopps Ind. 5G (1878); Beaucliamp v. State, V. People, 31 111. 385 (1863) ; s.c. 83 6 Elackf. (Ind.) 300 (1842) ; State v. Am. Dec. 231; Law. Insan. 444; State Moelohen, -53 Iowa, 310 (1880); s.c. V. Sterrett, 71 Iowa, 386 (1887) ; s.c. 5 N. W. Rep. 186 ; State v. Dumphey, 32 N. W. Rep. .387 ; 68 Iowa, 76; s.c. 25 4 Minn. 438 (1860) ; People v. Gar- N, W. Rep. 7.36 ; State v. Cross, 68 butt, 17 Mich. 9 (1868) ; s.c. 97 Am. Iowa, 180 (1885); s.c. 26 N. W. Rep. Dec. 162; Law. Insan. 463; State v. 62 ; McDnniel v. Slnte, 16 MisS. (8 Grate, 68 Mo. 22 (1878) ; Thomas v. Snicd. & M.) 401 (1847) ; s.c. 47 Am. People, 67 N. Y. 218 (1876) ; Warren 484 HOMICIDE. [chap. XXII. the defence is not limited to proof of such, reputation in the community where he lives.' Where such proof is intro- duced by the defendant, it is proper for the prosecution to introduce evidence in rebuttal thereof ;2 but this evidence must be of general character or reputation, and not of indi- vidual acts.^ As a general rule, the defendant's character cannot be at- tacked by the prosecution in the first instance, nor is it a proper subject for consideration ■* unless inseparably connected with the 7'es [/estce, and forming a part thereof.^ Thus it is proper to show that the homicide took place in a bawdy-house, and that the defendant was its proprietress, where these facts make the res (jestce more intelligible.'' Where a prisoner is charged with the commission of a crime, and evidence of good character is introduced by him, which is not controverted on the part of the people, such evidence is to be considered by the jury, and is not merely of value in doubtful cases, but will of itself sometimes create a doubt when, w^ithout it, none could exist ; and if good char- acter be proved to the satisfaction of the jury, it should pro- duce an acquittal, even in cases where the whole evidence slightly prepoiulerated against the accused.^ Sec. 439. Same — Peacef ulness of character. — Evidence of good character as a peaceable man is of no avail except in thoseji cases where it is a question whether the homicide was committed by the accused ; and if the defendant admits the homicide, and seeks to justify his act on the ground of self- defence, such evidence will not have any application to the case, except as it may remotely bear upon the truthfulness of V. Commonwealth, ?,7 Pa. St. 45 * State r. Merrill, 2 Dev. (N. C.) (1860) ; s. c. Law. Insan. 809 ; Gibson L. 20'.) (18-JJ)). V. State, 23 Tex. App. 414 (1887) ; s.c. ^ See Spies v. People (Anarchists' 5 S. W. Kep. .314; Compare Walker Case), 122 111. 1 (1887) ; s.c. 9 Cr. L. V. State, 102 Ind. 502 (1885) ; s.c. 1 Map. 829; .3 Am. St. Rep. ,320; 6 Am. N. E. Uep. 85(5. Cr. Kep. 570; 12 N. E. Kep. 805; Gib- 1 State V. Cross, 08 Iowa, 180 son v. State, 23 Tex. App. 414 (1887) ; (1885) ; s.c. 26 N. W. Kep. 62; State s.c. 5 S. W. Kep. 314. V. Sterrett, 68 Iowa, 76 (1885) ; s.c. « Gibson v. State, 23 Tex. App. 414 25 N. W. Kep. 9.36. (1887) ; s.c. 5 S. VV. Rep. 314. ■^ See Beanchamp !'. State,6 Blackf. "Stephens v. People, 4 Park. Cr. (Inrl.) 300 (1842). Cas. (N. Y.) 390 (1859). •5 McCarty v. People, 51 111. 231 (1869). SEC. 440.] EVIDENCE — COMPETP^NCE. 485 the story told by the defendant, and the merit of his defence.^ It is said in Cathcart v. Commonwealth ^ that on the trial of an indietment for murder, it is not error to rejeet an offer to prove that the prisoner "always had been known as a kind-hearted man," if the rejection be accompanied by per- mission to show his character for peacefiilness and regularity of conduct towards the deceased, or in any other respect which had a proper relation to the subject-matter of the prosecution. In Thomas v. People,^ after the witness had testified that the prisoner was a quiet man and good-natured, as far as he knew, he was asked to "state what his disposi- tion was when crossed or misused." This was objected to and held to have been properly excluded. Sec. 440. Evidence of character — Negative evidence. — The right of a defendant on trial for murder to introduce negative evidence of character was conceded by the supreme couit of Alabama in the recent case of Hussey v. State,* where it was held error to refuse to permit the defendant, in an indictment for murder, in introducing evidence of his good character, to ask the witness if he had "ever heard of the defendant having any other difficulty except the one in question " ; as it is equivalent to the inquiry whether the witness had ever heard anything against the character of the defendant for quiet, peace, or good order. This evidence, though negative in form, is often more satisfactory than positive evidence. The court say : " The ruling of the court below raises in this case a question of evidence which is of great importance, as it occurs to us, in the practical administration of justice. It involves the right of a de- fendant to introduce negative testimony in support of his good character, — a right which does not seem to be recog- nized by the old text writers and authorities, but may be said to be accorded from necessity almost universally by the nui prius courts in the trial of causes. The defendant was allowed to prove his good character generally for peace and quiet, — an issue having reference to the nature of the charge 1 See Davis v. State, 10 Ga. 101 » 67 N. Y. 218 (1876). (1851). * 87 Ala. 121 (1889) ; s.c. 6 So. Rep. 2 37 Pa. St. 108 (1860). 420. 486 HOMICIDE. [chap. XXII. against him, which was murder. Two witnesses were asked the question whether they had ' ever heard of the defendant having any other difficulty except the one in question ? ' The question was objected to by the state, and on such oI> jection it was excluded. There is good authority in support of this ruling of the circuit court, but we are all of one opinion, that the question should have been allowed. Bare evidence by a witness that he knows the general character of a given person, and it is good, or very good, or excellent, is, after all, closely analogous to a mere opinion in the nature of a fact, and, standing alone, carries with it an impression that it is lacking in some element to give force to the state- ment. The party testifying can render it more satisfactorily and convincing by showing the foundation on which it rests. It is well to prove a person to be reputed honest, or truthful, or a woman chaste, or a man loyal to his country, or peace- ably disposed towards all his neighbors. But great emphasis is added by the declaration that the witness, who has had every opportunity to know, has never heard any human being challenge the honesty or veracity of the one, or breathe the slightest breath of suspicion on the virtue of the other, or assert any fact which goes to deny the loyalty or question the humanity and orderly conduct of the third. It is only to put the matter in a slightly different form to inquire of the deposing witness whether he had ever heard of any act or conduct in refutation of the good repute which he has affirmed of the person in question. To say his character is good is a positive expression of the fact. To say that the witness has never heard anything against his character, as to the particular phase in which it is put in issue, is negative in form, but often more satisfactory than evidence of a posi- tive character. . . . Under the principle established by these authorities we hold that the circuit court erred in excluding the question propounded as to whether the two witnesses named in the record had ever heard of the defendant's hav- ing any other difficulty except the one in question. It was equivalent to the inquiry whether the witness had ever heard anything against the character of the defendant for (;[uiet, peace, or good order, and should have been allowed by the court. The question propounded calling for evidence prima SEC. 441.] EVIDENCE — COMPETENCE. 487 facie, relevant and legal, the refusal to allow it was error, although no answer, or proposed answer, of the witnesses was stated." Sec. 441. Same — Reason for the rule. — The jDropriety of this rule of permitting negative evidence of good character, is gradually forcing itself upon the recognition of the courts, and there is a current of modern authority rapidly forming in support of it. Mr. Taylor, in his, work on evidence, after observing that the term "character" is not synonymous with " disposition," but simply means " reputation," or the general credit which a man has obtained in public opinion, observes as follows of the practice of the English judges on this point : " Aware that the best character is generally that which is the least talked about, they have found it necessary to permit witnesses to give negative evidence on the subject, and to state that they 'never heard anything against the character of the person on whose behalf they have been called.' Nay, some of the judges have gone so far as to assert that evidence in this negative form is the most cogent proof of a man's good reputation." ^ In support of this view he cites the late case of Reg. v. Rowtow,^ where Cockburn, C. J., observes : " I am ready to admit that that negative evidence to which I have referred, of a man's saying, ' I never heard anything against the character of the person of whose character I come to speak,' should not be excluded. I think, though it is given in a negative form, it is the most cogent evidence of a man's good character and reputation, because a man's char- acter does not get talked about till there is some fault to be found with him. It is the best evidence of his character that he is not talked about at all. I think the evidence is admissible in that sense." Mr. Wharton recognizes the same principle, and says: "In view of the fact that ' the best character is generally that which is the least talked about,' the courts have found it necessary to permit witnesses to give negative evidence on the subject, and to state that they ' never heard anything against the character of the person on whose behalf they have been called.' " ^ 1 1 Tayl. Ev. § 350. 3 Whart. Cr. Ev. (8th ed.) § 58; 2 10 Cox C. C, 25. Whart. Ev. § 49; and to the same 488 HOMICIDE. [chap. XXII. A well-considered case in direct support of this doctrine, is that of State v. Lee,^ where Berry, J., observes that, " A very sensible and commendable instance of the relaxation of the old and strict rule is the reception of negative evidence of good character ; as, for example, the testimony of a witness who swears that he has been acquainted with the accused for a considerable time, under such circumstances that he would be more or less likely to hear what was said about him, and has never heard any remark about his character, — the fact that a person's character is not talked about at all being, on grounds of common experience, excellent evidence that he gives no occasion for censure, or, in other words, that his character is good." It was held, accordingly, that a witness might, when a proper predicate of knowledge had been laid, be permitted to testify negatively to one's good character by affirming that he had never heard his character discussed or spoken of by any one. To the same effect is Gandolfo v. State,^ where negative evidence of a defendant's good character was allowed to be given. " Such evidence," it was said, " is often of the strongest description, as, where a character for truth is in issue, that among those acquainted with the party it has never been questioned : and so, as to character for peace and quietness, that among those with whom the party associates no instance has been known or lieard of in which he has been engaged in a quarrel. In State V. Nelson '5 the same rule was recognized, and a witness was allowed to testify that he had never heard anything against the defendant's character or reputation : the court observing that, in the absence of such a rule, "the person who had so far lived a blameless life as to provoke but little discussion respecting his character would oftentimes be utterly unable to support his character when assailed." In the case of Davis ?'. Foster,* an instruction to the jury was held good which asserted that "if a man's neighbors say nothing whatever about him, as to his truthfidness, that fact of itself is evidence that his general reputation for truth is purport is tlie view of Mr. Bishop, 1 ^ 58 Iowa, 208 (1882) ; s.c. 12 N. Bish. Cr. IVoc. (:W eil.) § 1117. W. Hep. 253. 1 22 Minn. 407 (1870). < 08 Ind. 238 (1880). 2 11 Ohio St. 114 (1860). SEC. 443.] EVIDENCE — COMPETENCE. ' 489 good." And in Davis v. Franke,^ a witness who had an oppor- tunity to know another's character was allowed to testily that he never heard it called in question ; Staples, J., ohserving : '' Possibly in many cases the highest tribute that can be paid to the witness, is that his reputation as a man ot" veracity is never called in question, or even made the subject of conver- sation in the community where he resides." In Childs v. State,"^ a witness who claimed to know the character of another witness, '• but nev^er heard his character discussed," was held competent to speak to the question of character.^ Sec. 442. Same — Defendant's acts of kindness to de- ceased. — Acts of kindness on the part of the defendant towards the deceased may properly be allowed to be put in evidence as tendino- to show the feelino-s or relations sub.-istinof between the parties ; but where there has been no attempt by the prosecution to show that the accused had ever been unkind to the deceased prior to the killing, it is not error in the court to refuse to admit cumulative evidence of acts of kindness by him.^ Sec. 443. Use of intoxicants. — It is said by the supreme court of Pennsylvania in the case of Wari'en v. Common- wealth,^ that on the trial of an indictment for murder, it is not error to reject questions as to whether the prisoner was not generally drunk, when out of work, whether he did not move more quickly when drunk than sober, to be followed with proof that he did move quickly on the occasion of the killing, and as to the effect of liquor on his constitution and brain, when there was no proof of actual intoxication, or that he was out of work at the time. Nor Avas it error to reject a question relating to the acts and declarations of the wife, on the day when the murder was committed ; they were not evidence in favor of the prisoner, and were irrelevant.^ 1 Z^ Graft. (Va.) 413 (1880). « A witness for the defence, in a 2 55 Ala. 28 (1876). tri;il for murder, havini? testified tiiat ^ A like principle was declared in the defendant was a peaceable man, Hadjo V. Gooden, 13 Ala. 718 (1848). was asked on cross-e.xaiiiination "• Murpliy r. People, 9 Colo. 435 whether there was any difference in (1886); s.c. 1:! I'ac. Hep. 578. the defendant's disposition when under ^ 37 Pa. St. 45 (1860) ; s.c. Law. the influence of liquor and when not, Insan. 809. and replied that he was peaceable 490 ■ HOMICIDE. [chap. XXII. Sec. 444. Somnambulistic comlition.i — Qn a trial for killing a stranger, on his sudden and roughly awakening the defendant, evidence is competent to show that the defendant had always been a somnambulist, had lately lost much sleep, and had recently had his life threatened by another than the deceased.^ Sec. 445. Socialistic, cominimistic, or anarchistic prin- ciples. — If there has been a conspiracy, and a homicide has resulted from such conspiracy, it becomes material to show the purposes and objects of the conspiracy, with the view of determining whether and in what respects it is unlawful. Anarchy is the absence of government ; it is a state of society where there is no law or supreme power. If the conspiracy had for its object the destruction of the law and the govern- ment, and of the police and militia as the representatives of law and government, it had for its object the bringing about of practical anarchy. And when murder has resulted from the conspiracy, and the perpetrators are on trial for the crime, whether or not the defendants were anarchists may be a proper circumstance to be considered, in connection with other circumstances in the case, with a view of showing what connection, if any, they had with the conspiracy, and what were their purposes in joining it. So it would be putting it too broadly to instruct the jury in such a case that it could not be material in the case that tlie defendants, or some of them, were or might be "socialists, communists, or anar- chists," and such an instruction might well be refused.^ Sec. 446. Same — Acts, threats, and declarations by con- federates and co-conspirators — Before the homicide. — As a rule the acts, threats, and declarations of third persons cannot be introduced in evidence against a defendant on trial under an indictment for homicide, but where a conspiracy when he was intoxicated. Held, that nambulism as a defence to crime, see the question and answer, taken to- Kerr's " Harris' Before and at Trial," gether, did not injure the defendant, pp. 270-282. Achey V. State, ()4 Ind. 60 (1878). 3 gpies v. People (Anarchists' 1 See ante, § 218. Case), 122 111. 1 (1887) ; s.c. 9 Cr. L. 2 Fain v. Commonwealth, 78 Ky. Mag. 829 ; 3 Am. St. Rep. o20 ; 6 Am. 183 (1879); s.c. 39 Am. Kep. 213; Cr. Rep. 570 ; 12 N. E. Rep. 865; 17 Law. Insan. 772. N. E. Rep. 898. For an interesting chapter on sora- SEC. 446.] EVIDENCE — COMPETENCE. 491 has been shown in furtherance of which the homicide is charged to have been committed, declarations and threats of co-conspirators as to the common design of the conspiracy, and acts committed and things done in furtherance thereof, are admissible in evidence.^ Thus where A incites a riot and takes part in it, and the mob kills a man, and A is put on trial for murder, evidence of cries of '• Kill him I " uttered by other members of the mob, is admissible.^ In Kunde v. State,^ on the trial of one of several persons in- dicted for murder, the defendant offered the reproduced testi- mony of a deceased witness to show acts and declarations on the part of K. one of his co-defendants, occurring shortly prior to the homicide, tending to show malice on the part of K, towards the deceased, and a motive to commit the crime. The court held that it having been shown by other evidence that K. was near the place of the crime at the time it occurred, and had equal opportunity with the defendant to commit it, and tliat K. had furnished two Mexicans each with a double- barrelled shot-gun, and that the Mexicans left K.'s house the night before the homicide, carrying the guns with them, and returned next morning with one barrel of each of the guns appearing to have been recently discharged, that the rejec- tion of such evidence was error warranting a reversal. In State v. McCahill,'* a trial for murder, it appeared that the defendant was one of a mob of striking miners which sur- rounded and entered a house in which some new workmen had taken refuge, and fired several shots in the direction of a chamber in which the men were, one of which killed the de- ceased, but there was no evidence to show that the defendant 1 Spies V. People (Anarchists' (1887) ; Armstead v. State, 22 Tex. Case), 122 111. 1 (1887); s.c. Cr. L. App. 51 (1887); s.c. 2 S. W. Rep. Mag. 829; 3 Am. St. Rep. 320; 6 Am. 627 ; Tow v. State, 22 Tex. App. 175 Cr. Rep. 570; 12 N. E. Rep. 8(55; 17 (1887) ; s.c. 2 S. W. Kep. 582; Kunde N. E. Rep. 898. See People v. Geiger, i-. State, 22 Tex. App. 65 (1887) ; s.c. 49 Cal. 643 (1875); McRae i;. State, 3 S. W. Rep. 325; Preston v. State, 4 71 Ga. 96 (1883); State v. McCuhill, Tex. App. 186 (1879). 72 Iowa, 111 (1887) ; s.c. 9 Cr. L. Mag. 2 McRae v. State, 71 Ga. 96 (1883). 37; 30 N. ^Y. Rep. 553 ; State i». Fitz- 3 22 Tex. App. 65 (1887); s.c. 3 hue, 2 Oreg. 227 (1867); Kehoe v. S. W. Rep. 325. Commonwealth, 85 Pa. St. 127 (1877) ; * 72 Iowa, 11 (1887) ; s.c. 9 Cr. L. Cook y. State, 22 Tex. App. 511 Mag. 37 ; 30 N. W. Rep. 553. 492 HOMICIDE. [chap. XXII. fired the fatal shot, it was held that the prosecution might prove the history of the strike, both before and after the acts of violence, and also a conspiracy to forcibly drive out new men. But only those declarations of each member of a conspiracy, however, which are in furtherance of the common design, can be introduced in evidence against the other members. Dec- larations that are merely narrative as to what has been done, or will be done, are incompetent, and should not be admitted, except as against the defendant making them, or in whose presence they were made.^ Sec. 447. Same — Revolutionary org-anizations — Adopt- ing the writing's of others. — In the famous Anarchists' trial it was shown that the " International Association " in Chicago was an illegal organization, engaged in making bombs and drilling with arms for the unlawful purpose of attacking the police force of the city in case the latter should assume to do their duty in the preservation of the public peace. Its members were conspirators, and, by their act of conspiring together, they jointly assumed to themselves, as a body, the attribute of individuality, so far as regarded the prosecution of the common design. Newspapers, conducted by members of the organization, as its organs, advocated the purposes of the conspiracy, and speakers addressed public meetings, called by some of the conspirators, inciting the people to resist the police, and advising riot and murder. The police were attacked, and several of them killed. On a prosecution of some of the conspirators for murder, it was held that the utterances of these papers and speakers were competent evidence against the defendants, as showing the purposes and intentions of the conspiracy which they repre- sented.2 On the same trial, Johann Most's book on the "Science of Revolutionary Warfare " was admitted in evidence against the defendants. This book is a treatise upon the most im- proved methods of making bombs and preparing dynamite I Spies V. People (Anarcliists' - Spies r. People (Anarchists' Case), 122 111. 1 (1887) ; s.c. 9 Cr. Case), 122 111. 1 (1887) ; s.c. 9 Cr. L. Mag. 829; 3 Am. St. Rep. .320; L. Mag. 829; 3 Am. St. Rep. 320; fl Am. Cr. Rep. 570 ; 12 N. E. Rep. Am. Cr. Rep. 570 ; s.c. 12 N. E. 805 ; 17 N. E. Rep. 898. See 1 Greenl. Rep. 805 ; 17 N. E. Rep. 898, Ev. (14th ed.) § 133. SEC. 448.] EVIDENCE COMPETE^'CE. 493 and other explosives, and contains suggestions as to how to apply the results of modern science to the Avork of destruc- tion of the " capitalistic system," and advice to persons who, as members of the so-called revolutionary forces, might pur- pose to engage in the use of these weapons and explosives. The treatise was distributed among the members of the inter- national groups at their picnics and meetings through the ao-ency of the International Association. Its circulation was an act of the illegal organization to which all the defendants belonged, and was one of the methods by which that organiza- tion instructed and advised its members to get ready for the murder of the police during the excitement among the striking working-men, at the time existing. Their newspaper organs commended it and quoted from it. Some of the conspirators read it and acted upon the suggestions contained in it. When the leaders of the organization thus made use of this treatise, they adopted it as a manual of tactics, and it became a book of their written advice and instructions to their fol- lowers. It was competent evidence as showing the purposes and objects which they had in vicAv, and the methods by which they proposed to accomplish these objects.^ As to the fact that some of these bombs and cans, like some whicli had been shown to certain of the conspirators during their drill, were found buried near one of the designated meeting places where certain of the armed men were assembled on the night of the attack on the police, this was a circumstance proper to be considered by the jury in determining the nature and character of the conspiracy, and its connection with the events of the night of the killing.^ Sec. 448. Acts, threats, and rteclaratioiis of co-rtefeiulant — After homicide. — Acts and declarations by a co-defendant, not shown to be a co-conspirator, committed or made after the time of the commission of the homicide, are not admis- sible against the defendant, unless shown to have taken place in his presence.2 Thus in Armstead v. State ^ the defendant 1 Spies v. People (Anarchists' (1850) ; Minims v. State, 10 Oiiio St. Case), 122 111. 1 (1887); s.c. 9 Cr. 221 (1865); Armstead i: State, 22 L.Mag. 829; 3 Am. St. Rep. 320; Tex. App. 51 (1887); s.c. 2 S. W. 6 Am. Or. Rep. 570; 12 N. E. Rep. Rep. 627. 865; 17 N. E. Rep. 898. " 22 Tex. App. 51 (1887) ; s.c. 2 2 See Cobb i-. State, 27 Ga. 648 S. W. Rep. 627. 494 HOMICIDE. [chap. xxir. • and H. were jointly indicted for murder. On the trial of the defendant alone, the state offered to prove that after the killing H. was taken by a deputy sheriff to the vicinity of the crime, and pointed out to the deputy a place where a cartridge shell was found which fitted H.'s gun. The court held that the evidence was not admissible. But in Minims v. State, ^ wliich was a trial for murder, it is said that where it is shown that certain property was in the possession of the deceased, and that, afterwards, part of the property was found in the possession of the prisoner, and the prisoner is shown to have been in communication with B., in whose premises another portion of the property was found, evidence of the conduct and declaration of B. is admissible to show that the property was, in fact, in the possession or custody of B., leaving it for the jury to determine whether he was such custodian, and if so, whether, under the proof, he had been made so by the prisoner, with or without reference to any conspiracy between them. And it seems that when a defend- ant, who is jointly indicted for murder with another, who has i^leaded guilty, is appealed to by that other, who must know his guilt, if guilty, to confess the crime, and he simply re- fuses to confess, but does not deny his guilt, the circum- stances may be given in evidence to the jury.^ Sec. 449. Acts, threats, and declarations of third per- sons before the homicide. — It is a rule of evidence too well established to admit of question that, as a general thing mere declarations made before the homicide by third per- sons not shown to be co-conspirators with the defendant are incompetent and inadmissible, yet all that was said and done by all persons at the mortal combat, or the scene of the homicide, is a part of the res gestce, and is, there- fore, competent.^ Where it is clearly shown that defendant did the killing, evidence of threats by third persons against the deceased is not admissible ; but where the prosecution relies on circumstantial evidence, or the proof leaves a doubt whether the defendant was the slayer, evidence of threats or acts tending to show malice on the part of a third person to 1 16 Ohio, St. 221 (1865). » state v. Corcoran, 38 La. An. 949 2 Cobb V. State, 27 Ga. 648 (1850). (188G). SEC. 449.] EVIDENCE COMPETENCE. 495 commit the homicide, is admissible in defendant's favor ^ un- less such threats or ill-feelings are remote, and the 6nmity has disappeared.2 But the name of such third persons must be shown, and also the circumstances under which the threats were made or the hostile acts committed.^ If such evidence is introduced for the purpose of showing malice or motive of another to commit the crime, the proof must be of something which shows positive personal ill-feeling, and not merely a con- troversy not liable to engender enmity.* But if the homicide is made to depend upon some other act by the defendant lead- in o- to it, it may be shown that an act of the same nature towards the deceased was committed by another person.^ The defendant may also show, by acts and declarations of third parties, a conspiracy against him between such parties and the deceased,^ or the liability of an attack from the deceased on ac- count of enmity between persons of different families or classes.''' 1 Morgan v. Commonwealth, 1-4 Bush (Ivy.) 10(j (1878) ; Sawyers r. State, 15 Lea (Tenn.) 694 (1885) ; Kunde v. State, 22 Tex. App. 65 (1886) ; s.c. .3 S. W. Rep. 325, over- ruling Holt V. State, 9 Tex. App. 571 (1881) ; Walker v. State, 6 Tex. App. 576 (1879) ; Bootlie v. State, 4 Tex. App. 202 (1879) ; Bowen v. State, 3 Tex. App. 617 (1878). See State v. Johnson, 31 La. An. 368 (1879); State V. Testerman, 68 Mo. 408 (1878) ; Rufer v. State, 25 Ohio St. 464 (1874) ; Wright v. State, 43 Tex. 170 (1875) ; Leonard v. Territory, 2 Wash. Tr. 381 (1885) ; s.c. 7 Pac. Rep. 872. Compare Banks i\ State, 72 Ala. 522 (1882) ; Commonwealth v. Abbott, 130 Mass. 472 (1881) ; State v. Lam- bert, 93 X. C. 618 (1885). 2 On the trial of A. for the murder of B.'s wife, evidence of hostile feel- ings and acts on B.'s part towards her while living in another town, on ac- count of alleged adulterous conduct on her part, said acts being followed by a period of amicable cohabitation Tip to the time of the murder, were held inadmissible. Commonwealth r. Abbott, 130 Mass. 472 (1881). ■ 3 State V. Johnson, 31 La. An. 368 (1879). * The facts and details of a civil suit between the deceased and other parties is not competent evidence on a trial for homicide. State v. Brooks, 39 La. An. 817 (1887) ; s.c. 2 So. Rep. 498. ^ There being evidence tending to show that A. and defendant agreed that A. should call deceased out of church, and that defendant should kill him, defendant may introduce testimony tending to prove that a certain woman called out deceased to walk home with her. Harrison v. State, 78 Ala. 5 (1884). 6 See Simmons v. State, 79 Ga. 696 (1887) ; s.c. 4 S. E. Rep. 894. ^ Thus it is said, in the case of May- field V. State, 110 Ind. 591 (1886), that when the accused pleads self-defence, and there is evidence tending to show a standing feud between the families of the accused and the deceased, state- ments of the deceased's father made in the presence of the deceased, and to which he listened in silence, to the effect that if the accused's family did not look after themselves deceased would shoot some of them, are admis- sible as tending to establish any mat- ter in controversy at the trial, and not only for the purpose of impeaching 496 HOMICIDE, [chap. XXU. In the absence of proof of a conspiracy between the defend- ant and third persons against the deceased, evidence of threats or of enmity, or of ill-feeling by such third persons against the deceased is inadmissible against the defendant; and if it be admitted, should be excluded, upon the failure of the state to show a conspiracy.^ But testimony by a third person that he advised the defendant to do violence to the deceased may be admissible if the proof shows that the prisoner acted upon such suggestion ; ^ and declarations of a third person so closely identified with the defendant as to show a motive connected with such person, may also be competent.^ Sec. 450. Same — ^ After the homicide. — As a general rule, declarations or exclamations made after the homicide by third persons not shown to be co-conspirators with the defend- ant against the deceased are inadmissible, as being mere hearsay.* But where, on the trial, the testimony of certain witnesses implicates the defendant in the homicide, their declarations to the contrary, made at the time of the homicide or afterwards, may be proved to discredit their testimony.^ But where a part of a conversation is introduced by one party as res (/estce, the remainder may be shown by the other party .•" the credibility of deceased's father, who had denied making such state- ments on cross-examination. 1 State V. Perry, 16 La. An. 444 (1862) ; Rufer v. State, 25 Ohio St. 464 (1874) ; Wright v. State, 43 Te.x. 170 (1875). •^ Fisiier v. State, 77 Ind. 42 (1881). 3 See Stepliens v. People, 19 N. Y. 549 (1859). * Bradshaw i-. Commonwealth, 10 Bush (Ky.) 576 (1874); State v. Oliver, .'JO La. An. 470 (1887) ; s.c. 2 So. Rep. 194. See State v. Sneed, 88 Mo. i;58 (1885) ; Greevfield v. People, 85 N. Y. 75 (1881) ; s.c. 39 Am. Rep. 635; State v. Shuford, 69 N. C. 486 (1873); Grigsby c. State, 4 Baxt. (Tcnn.) 19 (1874); Fielder v. Slate, 23 Tex. App. 477 (1887) ; s.c. 59 Am. Rep. 777; 5 S. W. Hep. 145; Holt V. State, 9 Tex. App. 571. Com- pare Flanegan i'. State, 64 Ga. 52 (1879) ; People v. Foley, 64 iMich. 148 (1887) ; 9 Cr. L. Mag. 345 ; 31 N. ^V. Rep. 94. Evidence of threats of a crowd to lyncli the defendant are inadmissible on liis trial. State v. Sneed, 88 Mo. 138 (1885). 5 Smith V. State, 9 Ala. 990 (1846) ; Mixon V. State. 55 Miss. 525 (1878). It is said in Mixon r. State, 55 Miss. 525 (1878), tliat where, on a trial for murder, two witnesses liad testified that tliey had selected the accused and several persons and iden- tified him as the one they saw kill the deceased, it was error to reject evidence offered by him to show wiiat were the words and acts on such oc- casion, and that there was in fact no such identification, altliough he had not tliereon examined the two wit- nesses so testifying for the state. •^ In the case of People r. Driscoll, 107 N. Y. 414 (1887) ; s.c 10 Cr. L. Mag. 244 ; 14 N. E. Rep. 305, a wit- SEC. 451.] EVIDENCE COMrETENCE. 497 While actions of the parties subsequent to the homicide are usually incompetent against the defendant, yet where the evidence leaves a doubt whether the defendant was the slayer, actions by the other party immediately after the kill- ing, showing conclusively that they could not have killed the deceased in the manner in which it was done, may be admissible.^ Where a homicide was committed in the dark, in the midst of a crowd, and there is a question whether a wound in the back, from which the death may have resulted, was made by the prisoner or another, a declaration made by a bystander immediately after the rencounter, to the effect that he, the bystander, cut the accused in the back with a knife, when the accused had no such cut in the back, but deceased had, is admissible for all purposes as part of the res gestce ; and a charge of the court confining such evidence to the single object of impeaching the testimony of the bystander is error, for which a new trial should be granted.^ A letter written by another than the defendant to a third person, containing expressions possibly capable of being con- strued as a confession that the writer committed the murder, is incompetent as evidence for the prisoner.'^ Sec. 451. Same — Cries or exclamations of l)ystander.s. — The cries or exclamations of bystanders, who are in no way acting in concert with either of the parties to a homicide, constitute no part of the res geata'. Thus in Bradshaw v. Commonwealth,'* where B. Avas accused of shooting P. and ness had testified to liearing one M. up his pistol to an officer; that it was state in a conversation, shortly after loaded, and the barrel was cold. The the killing, tliat he did not shoot de- court repeated the testimony, and ceased; that M., on the stand, testi- asked the witness if that was right, fied he did not discharge a pistol that lie answered " Yes," and the defend- night. Defendant had shown that ant asked to have the answer stricken ileceased had cliarged ^I. in his pres- out. Held, that it was properly de- ence with killing lier, and the decla- nied. People v. DriscoU, 107 N. Y. ration of M. denying it was made at 414 (1887) ; s.c. 10 Cr. L. Mag. 244; tliat time. The court held that it 14 N. E. Rep. 305. was properly admitted as a part of - Flanegan v. State, 64 Ga. 52 the conversation introduced by de- (1879). fendant. " 3 Greenfield v. People, 85 N. Y. 75 1 In a trial for murder a witness (1881); p.c. o9 Am. Rep. OOG. had testified, without objection, that * 10 Bush (Ky.) 57G (1874). one M. had, after the homicide, given 498 HOMICIDE. [chap. XXII. then throwing him from a moving train, which passed over P.'s body, and bystanders exclaimed, " B. has shot P.," these exchimations of the bystanders were he hi inadmissible in evi- dence. In Felder v. State,^ when a person introduced as a witness arrived at the place where a homicide had been com- mitted, a person in the crowd pointed to the defendant and said, " There is the man that did the shooting." It did not clearly appear that the defendant knew that he was tlie man referred to, although he was within healing of the remark, and the court held that the evidence of this exclamation was inadmis- sible on the defendant's trial for murder. Sec. 452. Same — Declarations made in presence of accused. — Declarations made by third persons in the pres- ence of the accused, respecting the matter in question, are ordinarily evidence against him, yet this principle does not apply to declarations which called for no response or dis- claimer by him. Thus where in the trial of an indictment for murder it appeared that the father of the defendant remarked in his hearing of the murder of one M., " I said M. should go dead; and now he is dead," the declaration was held to be inadmissible in evidence against the son. In State V. Shuford,^ it is said that on the trial of the mother for the murder of her infant child, a witness shall not be permitted to relate a statement made by the mother of the prisoner, and in her presence, that the prisoner had a child this way before and put it away, to which the prisoner made no reply, and the reception of such evidence entitles the prisoner to a new trial. Sec. 453. Same — Declarations made out of presence of accused. — Declarations made by a third party out of the pres- ence of the accused cannot be introduced in evidence against the latter ; particularly is this the case where it is not shown that such declarations were brought to the knowledge of the accused, and in such a manner as to call for a denial. Thus on the trial of an indictment for murder l)y burning a house containing two children, three witnesses testified that they bad identified certain clothing left in the house and claimed 1 23 Tex. App. 477 (1887) ; s.c. 50 '' G9 N. C. 480 (1873). Am. Eep. 777 ; 5 S. W. Uep. 145. SEC. 454.] EVIDENCE — COMPETENCE. 499 by the accused. The court held that the adnussion of testi- mouy to the effect tliat these three and another person had, when the accused was not present, examined tlie clothes, and declared them to be the clothes so left, was ground for setting aside the conviction.^ Sec 454. Previous relations existiii.sf between deceased and defendant — Previous quarrellinjj or ill-feeling — Proof of by prosecution. — A former difhculty or quarrel between the deceased and the defendant is admissible against the latter, as tending to show malice ; ^ and the competency of such evidence is not affected by the length of time before the homicide that such quarrel or ill-feeling is shown to have occurred or existed, but the remoteness goes entirel}- to its weight.^ But it has been said that evidence of previous quar- rels, or of prior particular acts, to be admissible against the prisoner, must not be of a separate and independent act, but ^ Grigsby v. State, 4 Baxt. (Tenn.) 19 (1874). 2 Finch V. State, 81 Ala. 41 (1886); s.c. 1 So. Rep. 565; Garrett v. State, 76 Ala. 18 (1884) ; Commander v. State, 60 Ala. 1 (1877) ; Pound v. State, 4.3 Ga. 88 (1871); Choice v. State, 31 Ga. 424 (1860) ; s.c. Law. Insan. 5-38 ; Koerner r. State, 98 Ind. 7 (1884) ; Rinns v. State, 66 Ind. 428 (1879) ; Slate v. Periqo, 70 Iowa, 657 (1886); s.c. 8 Cr. L. Mag. 156; 28 N. W. Rep. 452; State v. Cole, 63 Iowa, 695 (1883) ; Williams v. State, 64 Md. 384 (1885); s.c. 5 Am. Cr. Rep. 512; 1 Atl. Rep. 887; Dillin v. People, 8 Mich. 357 (1860) ; People v. Lnons, 110 N. Y. 618 (1888) ; s.c. 10 Cr. L. Mag. 690; 17 N. E. Rep. 391 ; Sayres r. Commonwealth, 88 Pa. St. 291 (1879); Boyle v. State, 61 Wis. 440 (1884) ; s.c. 21 N. W. Rep. 289. See People i'. Stonecifer, 6 Cal. 405 (1856). On the trial of a man for murder- ing his wife, evidcaice of ill-treatment and want of affection is admissible. State V. Cole, 63 Iowa, 695 (1883); s.c. 17 N. W. Rep. 183; Boyle v. State, 61 Wis. 440 (1884); s.c. 21 N. W. Rep. 289. And it has been said that on the trial of B. for murder of his wife, parol evidence that a suit for divorce had been pending wherein she was plaintiff and lie defendant, is admissible. Binns r. State, 06 Ind. 428 (1879). A remark addressed by a wife to her husband, the defendant in a mur- der trial, five hours prior to the killing, and in the presence of tlie deceased, " Mr. G., don't you and Mr. F. (deceased) have any difficulty. Mr. G., you take me home," held admissible to prove the facts of a prior difficulty. Garrett v. State, 76 Ala. 18 (1884). The defendant's con- fession concerning a previous difficulty with the deceased is admissible on the question of malice and motive. Finch r. State, 81 Ala. 41 (1886); s.c. 1 So. Rep. 565. 3 See Koerner i: State, 98 Ind. 7 (1884) ; State v. Perigo, 70 Iowa, 657 (1886) ; s.c. 8 Cr. L. Mag. 156 ; 28 N. VV. Rep. 457 ; Dillin i-. People, 8 Miidi. .357 (I860) ; People v. Lyons, 110 N. Y. 618 (1888) ; s.c. 10 Cr. L. Mag. 690 ; 17 N. E. Rep. .391 ; Sayres V. Conmionwealth, 88 Pa. St. 291 (1879). 500 HOMICIDE. [CIIAP. xxir. there must be some link of association Avliich draws together the preceding and subsequent acts, and sheds light upon the motive of the parties, to render such evidence admissible ; and the state of feeling, generally, between them may be admitted to illustrate their conduct at the time.^ Evidence of a quarrel between the defendant and the deceased, three or four weeks before the homicide, is admissi- ble as showing the commencement of the history of the rela- tions between the parties.^ Thus on the trial of a person for tlie murder of his wife, it being shown that he had domestic troubles for many years, evidence is admissible of a quarrel occurring two years''^ or even for years ^ before the killing, to show malice. And where a sea captain is charged with mur- dering one of his seamen by inhumanly beating him, evidence of maltreatment on preceding days is admissible on the ques- tion of ill-will or malice.^ It is said in the case of State v. Perigo^ that on the trial of an indictment for murder, evidence of a quarrel between the defendant and the deceased about a year before the kill- ing, is competent to prove ill-will on tlie part of the defendant towards the deceased. And in Dillin v. People,'^ where it appeared that the deceased had been absent from the neigh- borhood of the prisoner some eight or ten months preceding the alleged offence, it was held competent for the prosecution to show the state of feeling between the prisoner and the deceased immediately preceding such absence. It is said by the supreme court of Alabama in the case of Commander v. State,^ that the fact of a litigation between the deceased and the prisoner, who were connected by marriage, 1 Pound r. State, 43 Ga. 88 (1871). show express malice, was strictly in - People V. Lyons, 110 N. Y. G18 rebuttal, and the decision of tlie court (1888); s.c. 10 Cr. L. Mag. 690; 17 below admitting it would not be re- N. E. Rep. 301. viewed in tlie supreme court. In Clioice v. State, 31 Ga. 424 ^ Sayres v. Coniuionwealtli, 88 Pa. (1860) ; s.c. Law. Insan. 538, upon a St. 291 (1879). trial for murder, the state, having ^ Koerner !•. State, 98 Ind. 7 (1884). proved the homicide, rested. The ^ Williams v. State, 64 Md. 384 defendant set up insanity, and intro- (188')); s.c. T) Am. Cr. Rep. 512; 1 duced evidence to prove it. The court Atl. Rep. 887. held that evidence on the part of the « 70 Iowa, 6.')7 (1886) ; s.c. 8 Cr. state of a difficulty between the de- L. Mag. 156; 28 N. W. Hep. 457. fendant and the deceased, on the night ' 8 Mich. 357 (1860). before the homicide, which tended to * 60 Ala. 1 (1877). SEC. 456.] EVIDENCE — COMPETENCE. 501 or of family litigation in which the prisoner felt an interest, connected with his declaration that he would kill any one who sued him under like circumstances, is admissible in evi- dence for the prosecution as bearing on the question of the relations subsisting between him and the deceased, and the state of his feelings towards the deceased ; but evidence touchinof the merits of such litigation not to be admissible for him in rebuttal. Sec. 455. Same — Where two jointly indicted. — Where two or more persons are jointly indicted for the same homi- cide, proof of a previous difficulty or of ill-feeling between one of them and the deceased can be admitted only as evidence of malice and motive in him to commit the homicide,^ and the confession of such co-defendant of a previous difficulty with the deceased is admissible against him to prove malice and motive for the homicide,^ and when such confession is admitted in evidence against the party making it, the other co-defendant cannot object to such admission as prejudicial to him.^ Sec. 456. Same — Proof of by defence. — Where the evi- dence leaves a doubt whether the homicide was committed with malice, or whether the defendant was the aggressor, and where the defendant pleads provocation or self-defence, he may adduce evidence of previous quarrels or difficulties with the deceased, or of ill-feeling by the deceased toward him tending to show the deceased to have been in fault in bringing on or maintaining the fatal encounter,^ unless such a quarrel 1 Finch r. State, 81 Ala. 41 (188(>); v. Cooper, 32 La. An. 1084 (1880); s.c. 1 Si). Kep. 605. State v. Johnson, 30 La. An. pt. II. 2 Garrctti;. State, 76 Ala. 18 (1884) ; 921 (1878) ; Wellar v. People, 30 Mich. Finch V. State, 81 Ala. 41 ri880) ; s.c. 1(5 (1874); s.c. 1 Am. Cr. Kep. 276; 1 So. Rep. 565. ~ Nelson v. State, (il Miss. 212 (1883); 3 See Jordan v. State, 81 Ala. 20 s.c. 34 Am. Rep. 444 ; Spivey y. State, (1886) ; s.c. 1 So. Rep. 577 ; Stewart 58 Miss. 858 (1881) ; State v. Grayor, r. State, 78 Ala. 436 (1885) ; Prior v. 89 Mo. -600 (1886) ; s.c. 1 S. W. Rep. State, 77 Ala. 56 (1884); Tidwell v. 365; McMeen i: Commonwealth, 114 State, 70 Ala. 33 (1881); People v. Pa. St. 300 (1886); Haile v. State, 1 Smith, 26 Cal. 665 (1864); Coxwell Swan. (Tenn.) 248 (1851); RusselU-. V. State, 66 Ga. 309 (1881) ; McGinnis State, 11 Tex. App. 288 (1882) ; Mar- V. State, 31 Ga. 236 (1860) ; Haynes nock c. State, 7 Tex. App. 269 (1880). V. State, 17 Ga. 465 (1855) ; DeForest Gn the trial of an indictment for J'. State, 21 Ind. 23 (1863) ; State v. murder, the state introduced in evi- Moelchen, 53 Iowa, 310 (1880) ; State dence declarations made by one of 602 HOMICIDE. [chap. XXII. was ended by a reconciliation, and no ill-feeling is sliown to have existed afterwards.^ Tlie length of time before the killhig that such quarrel occurred or such ill-feeling existed is immaterial, its remote- ness going to its weight and not to its competency.^ On a trial for murder, the accused, after proving that the deceased had threatened his life, should not be allowed to prove that they had a fight the day before the killing, for the purpose of showing to the jury the state of mind of the de- ceased towards him, and the apprehensions he had that his life was exposed, and that the threats against it would be carried into execution.^ And evidence of a fight between the de- ceased and the defendant, six hours before the homicide, is not admissible in favor of the defendant either as part of the res gestce, or to show a provocation for the murder.* Sec. 457. Same — Showing' business and social relations. — Where it appears that the homicide may have been com- mitted in order to enable the slayer to possess himself of property belonging to the deceased,^ or to obtain or destroy evidence of indebtedness from himself to the deceased,^ it is competent to prove the business and social relations existing between the defendant and the deceased for a reasonable time before the commission of the homicide. Thus it is said by the supreme court of Nebraska in the case of Clough v. State,''' that where the theory of the prosecution is that the homicide was committed by the prisoner to enable him to possess him- the defendants, half an liour before i Tidwellr. State, 70 Ala. .'W (1881). the killing, in which he threatened to - DeForest v. State, 21 Ind. 28 "put a light hole" through any one (18()o) ; Russell v. State, 11 Tex. App. who should strike T. Deceased sub- 288 (1882). Compare People r. Smith, sequently knocked down T., and, after 26 Cal. 665 (1864) ; State i'. Cooper, being remonstrated with by said de- 32 La. An. 1084 (1880); State v. fendant, was shot and killed by him. Grayor, 89 Mo. 600 (1886) ; s.c. 1 Tlie court held that the occurrence in S. W. Rep. .365. which deceased, defendants, and T. ■'' State v. Cooper, 32 La. An. 1084 were involved at the ])lace of the honii- (1880). cide, on the same evening, might be ■* People v. Smith, 26 Cal. 665 regarded as constituting a single trans- (18(54). action ; and that the evidence was ^ Clough v. State, 7 Neb. 320 admissible to show defendant's motive (1878). and purpose in remonstrating with '■ Webster i\ Commonwealth, 59 deceased. Jordan r. State, 81 Ala. Mass. (5 Ciish.) .186 (1850). 20 (1887) ; s.c. 1 So. Rep. 577. ' 7 Neb. 320 (1878). SEC. 458.] EVIDENCE — COMPETENCE. 503 self of his brother's property, the business and social relations subsisting between them, not only just about the tiriie Qf the murder, but also for a reasonable time before, are competent evidence. Also that where it is shown that the deceased was possessed, just before his death, of a considerable sum of money, it is competent for the prosecution to })rove payments of money by the prisoner just before, as well as after, the homicide was committed. Sec. 458. Proof as to weapon. — Where it is shown that the injuries, or part of them, causing the death of the de- ceased could have been inflicted with weapons or instruments of a certain kind, evidence that the defendant had such instru- ments in his possession before the killing is admissible.^ It is also competent to show that the size of the shot or missile, and the range of the gun, as proved on the trial, corresponded with the circumstances of the killing in those respects,^ and it is competent for a witness to say whether a weapon, which he has heard described, but has never before seen, corresponds with the description given.^ Thus where upon the trial of an indictment for manslaugh- ter, the evidence tended to show that the deceased was killed by being cut with a knife, the prosecution may introduce evi- dence that the defendant had borrowed a knife a short time before the homicide, as an act of preparation for an ex- pected dii!iculty ; and evidence as to the descriptiou of the knife was relevant.* The size of the shot^ and the range of the gun ^ may be shown where those questions have a bearing upon the case. 1 Finch V. State, 81 Ala. 41 (1880) ; the range of the gun used in shooting s.c. 1 So. Rep. 565; State v. Rains- and the size of the huckshot was with harger, 71 Iowa, 746 (1887); s.c. 31 which it was loaded, evidence is ad- N. W. Rep. 865. missible to show that a party, after '- Mose v. State, 36 Ala. 211 (1860) ; the murder, found a buckshot of said Dean v. Commonwealth, 32 Gratt. size in a tree within said range. Mose (Va.) 912 (1870). See Dukes v. r. State, 36 Ala. 211 (1860). State, 11 Ind. 557 (1858). ^ On a trial for murder by shooting, 3 Cobb V. State, 27 Ga. 648 (1859). evidence in relation to the examina- * Finch V. State, 81 Ala. 41 (1886) ; tion of guns in the neighborhood, to s.c. 1 So. Rep. 565. ascertain whether any of them carried s Thus, where it is shown, by tlie a ball of the size of the one found in confessions of a defendant on trial the body of tlie murdered man, was for murder by shooting, and the dying held admissible in Dean v. Common- declarations of the deceased, what wealth, 32 Gratt. (Va.) 912 (1879). 504 HOMICIDE. [chap. XXII. Where the charge against the defendant is the making of the \yeapon or instrument with which the killing was done, in furtherance of a conspiracy of which he was a member, it is proper to introduce in evidence other weapons or instru- ments made by him of the same kind, in order that the jury may compare them with the one with which the killing was done, and so bs aided in determining whether the defendant was its maker. Thus in the Anarchists' Case ^ the policeman for whose murder the defendants were indicted, was killed by the explosion of a bomb thrown in the midst of the police force. On the trial the court allowed to be given in evidence, bombs and cans containing dynamite, and prepared with contriv- ances for exploding it, which had been found under sidewalks and buried in the ground at certain points in the city, placed there by certain of the conspirators. As specimens of the kind of weapons which Lingg, the one of the conspirators who had charge of their manufacture, and his associates, were preparing, and as showing the malice and evil heart which the intended use of such weapons indicated, the introduction of bombs made by him was not improper. The jury had a right to see them and compare their structure with the description of the bomb that killed the policeman, with a view of deter- mining whether Lingg, as was charged, was the maker of the latter or not. But it is improper to allow a witness to experiment with the weapon with which the homicide was charged to have been committed, in order to determine the manner of its work- ing. Thus in Polin v. State ^ the supreme court of Nebraska say that the sheriff could not be allowed to discharge the revolver used by the prisoner to see whether it would go off at half-cock, as he claimed, and thus furnish evidence to sus- tain the theory of the defence that the killing was accidental, the revolver having gone off, as it was claimed, at half-cock.^ 1 Spies V. reoplc, 122 111. 1 (1887) ; tlie judge had no authority to require B.C. 9 Cr. L. Mag-. 829; o Am. St. Kep. the sheriff to make the experiment, 320; 6 Am. Cr. Hep. 570; 12 N. E. and in the second place the possibility Rep. 8fi5 ; 17 N. E. Hep. 808. of a discharge at half-cock could have 2 14 Neb. 540 (1883) ; s.c. 10 N. W. been shown just as well with the cham- Rep. 808. hers of the revolver empty as by an ^ Tlie court say : " In the first place actual discharge." SEC. 460. J EVIDENCE — COMPETENCE. 505 Sec. 459. Comparison of liandu ritinj?. — Where the identity of the prisoner with the shiyer is in dispute, it is competent for the jury to compare handwriting hy the pris- oner with signatures or other writing shown to have been written or signed by the shiyer; or they may consider sig- natures of different names, where it is chiimed tliat all were written by the defendant, in order to determine if such be the case,^ and a writing may be part introduced by one side, and the remainder by the other.^ Sec 460. Comparison of tracks and footprints. — Where the evidence leaves a doubt whether the defendant com- nfitted the homicide, it is always competent to compare tracks or footprints shown to have been made by him with tracks or footprints found at or near the scene of the homicide, and apparently connected therewith ;3 and so also it is competent to prove that the feet or shoes of his horse, or other animal of like kind, fitted corresponding tracks found at or near the place of the homicide.* And it is thought that where such measurements are not made until five days or even two weeks after the killing, this fact will not render the evidence incom- petent.''' In Bouldin v. State,^ in a trial of B. for an assassination, the principal inculpatory proof was that B.'s shoe fitted a certain track and that fresh horse-tracks led towards his house from the vicinity of the crime, which tracks, according to the 1 See Crist v. State, 21 Ala. 137 they were. He commenced by stat- (1852). i'lg: " I measured from the outside of '- Early i-. State, 9 Tex. App. 476 the flower-bed where the man stood," (1881). and then upon objection being made, 3 People r. McCurdy, 08 Cal. 57G said: " From where the footprints (1886) ; Dillin v. People, 8 Mich. 357 were up to the window," &c. The (1860) ; Murphy v. People, 63 N. Y. prisoner's counsel moved to strikeout 590 (1876) ; Stokes v. State, 5 Baxt. the answer, on the ground that there (Tenn.) 619 (1875) ; s.c. .30 Am. Rep. was no proof that the witness knew 72; Bouldin y. State, 8 Tex. App. 332 where the man stood. The motion (1880) ; Walker i-. State, 7 Tex. App. was denied. Held, no error; as, if 245 (1879) ; ,s.c. 32 Am. Pep. 595. the fore part of the answer was objec- In Murphy r. People, 63 N. Y. 590 tionable, it was immediately corrected. (1876), the imprint of a footstep was * Campbell v. State, 23 Ala. 44 found on the night of the murder on (1853) ; Bouldin i-. State, 8 Tex. App. a flower-bed near and under the win- 322 (1880). dow through wliich the shot was fired. ^ gee People v. McCurdy, 68 Cal. A witness, who lind made certain meas- 576 (1886) ; s.c. 10 Pac. Rep. 207. ureraents, was asked to state what ^ 8 Te?(. App. 332 (1880). 50G HOMICIDE. [chap. XXII. theory of the prosecution, were those of B. and his horse. The court held that B. might prove his willingness to put his foot and shoe in the track, and his request that the horse- tracks might be measured and compared with the feet and tracks of his horse. Sec. 461. Same — Compelling defendant to make foot- print. — No principle of law is better settled than that a person sliall not be compelled to be a witness, or compelled to testify against himself. This is a right guaranteed by the constitution in most if not all the states.^ It has been held that the requiring of a defendant to make an impression with his foot or shoe in a soft substance, in order that such impression may be compared with a footprint or track which is apparently connected with the homicide, is not compelling him '•'■ to give evidence against himself," pro- vided against by constitutional provision.^ But the better opinion is thought to be to the contrary. Thus in Stokes v. State,^ it is held that the action of a prosecuting officer in bringing into court a vessel filled with mud, and requesting defendant to put his foot in it is reversible error, although the court instructed the defendant that his compliance was optional with himself, and he refused to do as requested. The court say : " Because of this action of the attorney- general, and the assent of the court thereto, this cause is reversed and remanded. In the presence of the jury the prisoner is asked to make evidence against himself. The court should not have permitted the pan of mud to have been brought before the jury and the defendant asked to put his foot in it. We are satisfied the jury was improperly influenced thereby. And it is no sufficient answer that the judge after- ward told the jury, that the refusal to put his foot in the nuid was not to be taken as evidence against him. The bringing in of the pan of mud and the request of the attor- 1 See State v. Jacobs, 5 Jones 182. Tlie doctrine of tins last case is (N. C.) L. 259 (1858) ; Stokes v. denied in 10 Alb. L. J. 382. See State State, 5 Baxt. (Tenn.) 619 (1875). v. Ah Chuey, 14 Nev. 79 (1879) ; s.c. 2 Walker v. State, 7 Tex. App. 245 33 Am. Rep. 530. (1879); s.c. 32 Am. Rep. 596, citintr ^5 Baxt. (Tenn.) 019 (1875); s.c. State v. Graham, 74 N. C 046 (1870) ; 30 Am. Rep. 72. s.c. 21 Am. Rep. 493; 1 Am, Cr. Kep. SEC. 463.] EVIDENCE — COMPETENCE. 607 ney-general was improper, and should not have been per- mitted by tlie court. We greatly deprecate the practice into which some circuit judges have fallen, in permitting inconi})etent and illegal testimony to be placed before the jury, and afterwards, at the close of the case, withdrawing it and telling the jury not to be influenced thereby. Such testimony should be promptly rejected, and not permitted to go to the jury at all, for jurors with minds untrained to legal investigations and discriminations are sometimes likely to be influenced thereby, although such incompetent evidence may be afterwards withdrawn." The case of Stokes v. State ^ is criticised b}^ the supreme court of Nevada in the case of State v. Ah Chuey,^ where it is said : " The defendant Stokes, if he was the guilty person, was making evidence against himself when he put his foot in the mud near the scene of the homicide, and when arrested he could have been compelled to put his foot in that track, against his will,^ and if his foot corresponded with the track, that fact would have been admissible upon the tiial of his cause." * Sec 462. Same — Experiiucnts out of court with foot- marks. — In the case of State v. Sanders^ some of the jurors, without the knowledge or consent of the court, made experi- ments to ascertain whether such worn-out boots as the witnesses for the prosecution described would make such tracks as they described, and this was held to be such error as invalidated a conviction.'' Sec. 463. Evidence given at former inquiries into the homicide — At coroner's ihquest. — The statement of the 1 5 Baxt. (Tenn.) C19 (1875) ; s.c. liis foot in a soft substance, and such 30 Am. Rep. 72. impression to be afterwards used in 2 14 Nev. 79 (1879); s.c. 33 Am. comparisons witli other footprints, and Rep. 530. the results put in evidence, yet where ^ Tliis is manifestly not sound doc- such confession or such impression is trine, while it is true that one accused made tiirougli compulsion or duress, of a crime may voluntarily confess, they will not be competent, and such confession may be put in * Citinc; State v. Graham, 74 N. C. evidence against him if made without 646 (1876) ; s.c. 21 Am. Rep. 493; 1 hope of escaping from or receiving a Am. Or. Rep. 182. less punishment thereby; and while & 68 Mo. 202 (1878); s.c. 30 Am. it is doubtless also true that one ac- Rep. 782. cused of crime may voluntarily put " See ante, § 373. 508 HOJNUCIDE. [chap. XXII. defendant at the coroner's inquest upon the body of the de- ceased, made after he has been tokl that he is not oblisred to testify in any manner which might criminate himself, is ad- missible upon the trial of an indictment against him for the homicide.^ But parole evidence cannot be received of what was sworn to before the coroner's inquest, and reduced to writing by the coroner.^ And in a case where a false account is given by the prisoner in his evidence at the inquest, this fact may be considered by the jury as a suspicious circum- stance.^ Sec. 464. Same — At preliminary examination. — Testi- mony voluntarily given by the defendant on his preliminary examination, and reduced to writing and signed by him, may, when properly identified, be received in evidence against him.^ But evidence given by other witnesses at the preliminary ex- amination cannot be introduced as evidence in chief unless it be shown that the witness is dead,^ or out of the jurisdiction of the court ;^ but he maybe cross-examined as to statements made by him at the preliminar}- examination, if they are shown to him at the time.*^ Proof that the examining court refused bail to the defendant is not admissible.^ In the case of Steagald v. State,^ as a foundation for the introduction of the written testimony ot certain witnesses taken before an examining court, the state introduced the affidavit of one M., which, in conformity with the statute, recited the fact that the said witnesses were beyond the limits of the state, having removed to another state. The defence disputed the truth of this recital of the affidavit, and re- 1 State V. Gilman, 51 Me. 20G (1887) ; s.c. 9 8. W. Kcp. 270. Com- (1862) ; Kirby r. State, 23 Tex. App. pare State v. Dufour, 31 La. An. 804 13 (1887) ; s.c. 5 S. W. Rep. 165. See (1879). Lovett V. State, 60 Ga. 257 (1878) ; & State v. Taylor, IMiill. (N. C.) L. State V. Young:, 1 Winst. (N. 0.) L. 508 (1868). No. 1, 126 (1863) ; State v. Zellers, 7 « Steapald r. State, 22 Tex. App. N. J. L. (2 Halst.) 220 (1824). Com- 464 (1886) ; s.c. 9 Cr. L. Mag. 515; pare Snyder v. State, 59 Ind. 105 3 S. W. Rep. 771. (1877). ' See Gunter v. State, 83 Ala. 96 •estate V. Zellers, 7 N. J. L. (2 (1887); s.c. 10 Cr. L. Mag. 428; 3 Halst.) 220 (1824). So. Rep. 600. 3 Lovett V. StMte, 60 Ga.257 (1878). ^^ Rieliardson v. State, 9 Tex. App. * State V. Miller, .']5 Knn. .328 612(1881). (1886) ; s.c. 10 V:a: Rep. 865. See ■•'22 Tex. App. 464 (1886) ; s.c. 9 Bailey v. State, 26 Tex. App. 706 Cr. L. Mag. 615 , 3 S. W. Rep. 771. SEC. 467,] EVIDENCE — COMPETENCE. 509 quested the trial court to place the affiant, M., who was pres- ent in the court-room, upon the stand, so that he liiiglit be tested as to his means of knowledge of the allegations made in the affidavit. The trial court sustained the predicate as laid, and refused to allow the examination of iM. as to his means of knowledge. The appellate court held that in the latter ruling the court erred. Sec. 465. Same — At a foi-iner trial. — Upon the second or subsequent trial of an indictment for homicide the statements of the defendant, made at a former trial of the same indict- ment, are admissible in evidence.^ Sec. 466. Same — Defendant's affidavit for continuance. — It is sometimes proper for the court to allow admitted in evidence the voluntary statements made by the defendant in an affidavit made by him on an application for a continuance, the facts of which have been demanded by the prosecution ; but where such is the case, the whole affidavit should be read.2 Thus in Wheeler v. State ^ the defendant, in a trial for murder, made an affidavit, in order to obtain a continu- ance, in which he stated what he expected to prove by absent witnesses. The prosecuting attorney said he " would admit the affidavit," and the court permitted the trial to proceed. The court refused to permit the entire affidavit to be read to the jury. The respondent was convicted of manslaughter. On appeal the court held that the respondent was entitled to have the whole affidavit read to the jury, and for that reason ordered that the judgment be reversed ; and it appearing, from the record in this cause, that the appellant had served out more than half the period of time in the state's prison for which he was sentenced, it was ordered that the same be certified to the governor, to the end that the appellant might be discharged. Sec. 467. Legal process being served by deceased when killed. — Where the deceased was an officer of the law, and it is charged that he was killed while executing legal process, it is proper to introduce in evidence and read to the jury the 1 Dumas r. State, 63 Ga. 600 (1879). (1856); State v. Twiggs, 1 Winst. 2 See Coker v. State, 20 Ark. 53 (N. C.) L. No. 1, 142 (1863). (1859) ; Wheeler v. State, 8 Ind. 113 » 8 Ind. 113 (1856). 510 HOMICIDE. * [chap. XXII. warrant, or other process in the execution of which it is claimed tlie deceased came to his death. ^ ♦ Sec. 468. Proof as to motive — Iininuiiity from prose- cution for offence charged. — Where a homicide is charged to have been committed by the defendant in order to escape prosecution or punislnnent for some other offence of which it is claimed he liad been guilty, it is competent to prove the commission of such other offence, and the facts and circum- stances which may be .connected therewith, in order to show a motive in the defendant for killing the deceased. Thus it is proper, where the deceased was an officer, killed while attempt- ing to make an arrest, to show the commission by the defendant of a crime for which it is claimed that the deceased was attempting to arrest him.^ So also it is admissible to show a former crime, for which the deceased was the prosecutor, as showing an inducement to the defendant to kill the deceased.^ Thus evidence that the defendant had stolen money from the deceased is admissible as showing motive for the act, the de- ceased having accused the defendant of the stealing.* And upon a trial for murder alleged to have been committed in an attempt to conceal stolen goods, evidence tending to connect the murder witli the robbery is admissible, in order to show motive, and as part of the history of the occurrence.^ It is said by the supreme court of Mississippi, in the case of Gillum V. State,^ that where, on a trial for murder, it 1 See Boyd v. State, 17 Ga. 194 Tex. App. 571 (1881); Walker v. (1855); Comnionvvealth r. Murphy, State, (5 Tex. App. 57(5 (1879) ; Cow- C5 Mass. (11 Cush.) 472 (1853). ard v. State, 6 Tex. App. 59 (1879) ; 2 Floyd y. State, 82 Ala. 16 (1886) ; Boothe v. State, 4 Tex. App. 202 8.C. 2 So. Rep. 683; People v. Pool, (1879) ; Bowen v. State, 3 Tex. App. 27 Cal. 572 (1865). 617 (1878). ** Garden v. State, 84 Ala. 417 ■* lloberts v. Commonwealth, 8 (1887) ; s.c. 4 So. Hep. 823; Dnnn v. S. W. Hep. (Ky.) 270 (1888). Slate, 2 Ark. 229 (1839) ; s.c. 35 Am. On a trial for murder, an indict- Dec. 54 ; Turner v. State, 70 Ga. 765 ment against the defendant's brother (1883) ; Roberts i-. Commonwealth, 8 for theft from the deceased, accom- H. W. Rep. (Ky.) 270 (1888); State panied by testimony of the brother V. Patza, 3 La. An. 512 (1848) ; Gil- identifying himself, held to be com- lum V. State, 62 Miss. 547 (1885) ; petent to show the motive. Coward McCann v. People, 3 Park. Cr. Cas. v. State, 6 Tex. App. 59. (N. Y.) 272 (18.57); McConkey v. ^ McConkey r. Commonwealth, 101 Commonwealth, 101 Pa. St. 416 (1882); Pa. St. 416 (1882). Kunde V. State, 22 Tex. App. 65 «^ 62 Miss. 547 (1885). (1887) ; overruling Holt t'. State, 9 SEC. 469.] EVIDENCE — COMI'ETENCE. 511 appears that the defendant thought that a previous indict- ment against him for illegal liquor selling was procured by the deceased, such indictment is held competent evidence as tending to show a motive for the killing. In Floyd v. State ^ a policeman, while on duty, attempted to arrest the defendant, for whom he had no warrant, hut who was at the time charged with a felony, and was shot by the defendant while fleeing and pursued, evidence of the pend- ency of the indictment against the defendant and forfeiture of his bail bond, the reward offered for his arrest by his sure- ties, his acquaintance with the deceased as a policeman, and the knowledge of all these facts by the deceased, is relevant and material as shedding light on the animus of the defendant, and as bearing on the question of self-defence. To show a motive for the killing, a pending indictment, upon the finding of which the deceased was a witness, against the defendant for burglary of the deceased's house, is admissi- ble, where there is evidence of threats made by the defendant against the deceased in reference to the charge of stealing contained in the indictment, and because the deceased ap- peared as a witness before the grand jury,^ for the very good reason that it tends to show malice against the deceased as the supposed prosecutor.^ Sec. 469. Same — Proof of guilt of the crime charged. — It is unquestionably true that, as a general rule, testimony of the prisoner's guilt, or participation in the commission of a crime, or felony, wholly unconnected with that for which he is put upon his trial, cannot be admitted ; * but in those cases where the scieyiter or quo animo, is requisite to, and constitutes a necessary and essential part of such guilty knowledge, or malicious intention, in regard to the trans- action in question, evidence as to such acts, conduct, or declarations of the accused as tend to establish such knowl- edge or intent, is competent legal testimony to go to the jury, notwithstanding they may in law constitute a distinct crime. Thus upon an indictment for murder, former grudges 1 82 Ala. IG (1886) ; s.c. 2 So. Rep. ' See Marler v. State, 68 Ala. 580 683. (1881) ; s.c. 67 Ala. 55 ; Cliilds v. 2 Garden v. State, 84 Ala. 417 State, 55 Ala. 25 (1876). (1887) ; s.c. 4 Sc>. Rep. 823. * 1 Greenl. Ev. (14th ed.) § 52. 512 HOMICIDE. [chap. XXII. and antecedent menaces may be proved to show the prisoner's malice against the deceased and his motive for committing the offence ; ^ but testimony as to a distinct murder, committed by the prisoner at a different time, or of some other felony, or transaction committed upon or against a different person, at a different time, in which the prisoner participated, cannot be admitted until proof has been given establishing, or tending to establish, the offence with which he is charged, and showing some connection between the different transactions. Such facts or circumstances as will warrant a presumption that tlie latter grew out of, and to some extent was induced by some cir- cumstances connected with the former, as are calculated to show the quo animo, or motive by which the prisoner was actuated or influenced, in regard to the subsequent trans- action, are comj^etent and legitimate testimony.^ In the recent case of Garden v. State,^ evidence was ad- mitted to show that the deceased had been instrumental in procuring an indictment against the accused for burglary, and that the defendant had made threats against the deceased in reference to the charg'e of stealinsr contained in the indict- ment, and because he appeared as a witness before the grand jury ; but the court say that it was not competent for the state to enter into an investigation as to the *guilt or inno- cence of the defendant of the charge of burglary or larceny involved in that indictment ; that the merit of that prosecu- tion could not be entered into on the trial for murder. ""If it could be," the court say, " there would virtually be a trial of two separate felonies charged against the same defendant, progressing simultaneously on their merits and on distinct indictments ; for, if the state w^ere permitted to prove the guilt of the defendant under the burglary indictment, it Avould be competent for the defendant to rebut this evidence ' 1 Greonl. Ev^ (14th ed.) § 5.1* it is competent to show the guilt of 1 Piiill. Ev. 1(59; Roscoe's Cr. Ev. the prisoner as to tiie former murder, 71. See Ilapalje's Grim. Proo. § 248, for the purpose of showing a motive suhd. 2. for liis conduct respecting tlie murder 2 Thus where a person is indicted in question. Dunn r. State, 2 Ark. as accessory before the fact to the 220 (1889); s.c. .35 Am. Dec. 54; crime of murder and it appears that State v. Patza, P> La. An. 512 (1848). the inducement to tlie murder was the ^ Si Ala. 417 (1887); s.c. 4 So. exertions of the deceased to ascertain Rep. 823. the perpetrators of a former murder, SEC. 470.] EVIDENCE — COMPETENCE. 513 by proof of the contrary, showing his innocence. This wouhi in every essential be a trial for another felony other than murder, which is alone involved in the indictment under which the defendant is charged in the trial for murder. This would not only muti[)ly issues indefinitely, as any num- ber of similar collateral indictments might be injected into a pending prosecution ; but it would operate greatly to preju- dice the defendants so as to render a perfectly fair trial of them, in any instance, impracticable, if not quite impossible.^ Sec. 470. Same — Prevention of testimony by deceased. — On the trial of an indictment for homicide it is competent to prove that the defendant might be benefited by tlie death of the deceased, because the deceased would have been a witness against the defendant in some judicial proceeding against him, or between him and a third person, either civil or criminal.^ Thus it has been held that in order to establish a motive in a murder trial, it may be shown that the defendant had filed a bill for divorce against his wife ; and that the deceased was. the principal Avitness for her.-^ Also that where the deceased! was killed by an assault made by three defendants on her father and brother, the state may show that one of the de- fendants, who was indicted as principal in the first degree,. had been prosecuted for stealing, and that the father and brother were witnesses against him, it appearing that the quarrel was in relation to what they had said about the stealing.^ In Kunde v. State,^ on the trial of one of several defendants indicted for murder, the state introduced in evidence certain indictments found subsequent to the homi- cide, charging the defendants with the theft of hogs, the property of the deceased, and with perjury ; and also the testimony of the justice of the peace before whom the defend- ants were prosecuted for the offences for which they were 1 See Garrett v. State, 76 Ala. 18 N. C. 7G6 (1881) ; State v. Morris, (1884) ; Stewart r. State, 78 Ala. 430 84 N. C. 756 (1881) ; Kunde r. State, (1885) ; McAnally r. State, 74 Ala. 9 22 Tex. App. 65 (1886) ; s.c. 3 S. AV. (1883) ; Marler v. State, 68 Ala. 580 Rep. 325. (1881) ; s.c. 67 Ala. 55; Commander 3 Marler ;•. State. 68 Ala. 580 V. State, 60 Ala. 1 (1877)^ (1881). 2 See Marler v. State, 68 Ala. 580 * Mask r. State, 32 Miss. 405 (1856). (1881); Mask v. State, 32 Miss. 405 5 92 Tex. App. 65 (1887); s.c. 3 (1856) ; IMurpliy v. People, 63 N. Y. S. W. Rep. 325. 590 (1876) ; State v. Brantley, 84 514 HOMICIDE. [chap. XXII. afterwards indicted, at which trials the deceased was an indispensable witness for the state. The court held that the evidence of the justice, though meager and indefinite, to- gether with the indictments, were admissible to show a motive for the crime. In the case of Murphy r. People,^ upon the trial of an indictment for murder, it appeared that the deceased was killed by a shot fired through a window. G., who sat near the deceased at the time, and was wounded by the same shot, after having testified, upon the trial as a witness for the prosecution, that he was defendant in three suits commenced against him by the prisoner which were pending at the time of the murder, and that the deceased had accompanied him several times to attend the trial of said actions, was permitted to testify, under a general objection, as to wliat the actions were brought for. This was not error. The evidence was proper as showing a motive for the commission of the crime, and that the strength of the motive might depend upon the nature of the controversy and the extent of the pecuniar}^ interests involved; also that in the absence of a specific objection to the form of the proof, i.e., that the fact could not be proved by parole evidence, it was to be assumed that the question intended to be raised by the objection was as to the competency of proof of the fact, not to the mode of proving it. Sec. 471. Same — Promotion of plans of secret organi- zation. — In a trial for homicide, any evidence which fairly tends to prove a conspiracy between the persons to commit murder is admissible although not tending directly to prove the murder charged, and particularly is this true in a case where such testimony tends to corroborate and render more credible the testimony tending directly to prove the murder charged.2 On this principle it is competent, upon a trial for . murder, to introduce evidence to the effect that defendant is an agent or member of a secret organization or association, criminal in its character and object, and that the homicide was committed in the carrying out of flie common designs 1 63 N. Y. 590 (1876). St. 107 (1877) ; s.c. 2 Am. Cr. Rep. 2 Carroll v. Comnionweiilth, 84 Pa. 2!H). SEC. 472.] EVIDENCE — COMPETENCE. 515 and purposes of such secret organization, in order to prove a motive in defendant for its commission.^ Thus upon a trial for murder attributed to agents of a secret association, known as Molly Maguires, the prosecution, in order to show the motive, may prove the existence of such criminal organization, and may show that one division of such organization furnished men to commit murder in com- pensation for a like crime by members of another division.^ And in State v. Walker,^ in the prosecution of the Bald- Knobbers, it was held that evidence that the defendant and others met in a secluded place, in the night, armed and masked ; that they discussed the propriety of whipping different persons ; that they went two miles to a house, killed two of its inmates, of whom one was a person they had con- templated whipping ; and that, in the defendant's presence, instructions were given by one of the number to the others as to what they should swear in case of prosecution, suffi- ciently establishes a conspiracy, the scope of which included the homicide committed, to admit evidence that defendant belonged to a secret organization, whose object was the destruction of property and maltreatment of persons; and that some of the party, on the way from the rendezvous to the scene of the homicide, attacked the house of one of the murdered men and found him absent. Sec. 472. Same — Avarice. — Upon the trial of an indict- ment for murder it is permissible to show that the deceased was, at or near the time of the homicide, possessed of a con- siderable amount of money, or things of value, which tempted the avarice of the defendant, and so constituted a motive for killing the deceased ; * and it is also proper to prove posses- 1 McMaiius V. Commonwealth, 91 * State v. West, 1 Houst. Cr. Cas. Pa. St. 57 (1879) ; Campbell v. Com- (Del.) 371 (1873) ; State v. Rains- monwealth, 84 Pa. St. 187 (1877); barger, 71 Iowa, 746 (1887); s.c. 31 Carroll v. Commonwealth, 84 Pa. St. N. W. Kep. 865 ; State v. Crowley, 33 107 (1877) ; s.c. 2 Am. Cr. Rep. 290. La. An. 782 (1881) ; Marion v. State, 2 Campbell v. Commonwealth, 84 20 Neb. 233 (1886) ; s.c. 57 Am. Rep. Pa. St. 187 (1877); Carroll v. Com- 825;. Kennedy v. People, 39 N. Y. monwealth, 84 Pa. St. 107 (1877) ; 245 (1868) ; Early v. State, 9 Tex. s.c. 2 Am. Cr. Rep. 290. App. 476 (1881). See Ettinger r. 3 98 Mo. 95 (1888); s.c. 9 S. W. Commonwealth, 98 Pa. St. 338 (1881). Rep. 646. 516 HO.AIICIDE. [chap. XXII. sion, by the defendant, of unusual sums of money, or of other property, after the homicide.^ In Kennedy v. People,^ which was the trial of an indictment for murder, evidence of the receipt of a considerable sum of money by the deceased a few months previous to the murder was held competent for the purpose of showing a motive .for the commission of the murder; and in Early v. State,^ on a trial for the murder of W., evidence that W., before his removal to Texas, where he was killed soon afterwards, had $2,500, was held to be admissible for what it was worth, although remote. It is said in State v. Crowley,* that upon a trial for murder, it is permissible to show, by the inventory of his succession, that the deceased had in his house a certain amount of money. The evidence being competent as bearing upon the motive- In the case of Marion v. State,'^ at the trial of an indict- ment for murder, where the evidence was circumstantial, the prosecution was permitted to prove a conversation between the defendant and the deceased, relating to a purchase of property of the latter by the defendant, just prior to their departure from home together and to the alleged killing, the defendant having returned alone and in possession of the property, the posses- sion of which was to be retained by the deceased until the de- fendant had paid for it. The evidence was held con)petent to show a motive for the killing, although the contract had been reduced to writing and given to deceased. It is said by the Supreme Court of Delaware in the case of State V. West,^ that it is competent for the state to show that the defendant in a murder trial killed the deceased, placed the body in his room and then set fire to it, in order tliat it might be supposed that he himself had been bttrned up, and in order that he might obtain the money payable on insurance policies on liis life. In Ettinger v. Commonwealth,' on trial for murder of a woman in a house wheie she lived, an accomplice testified that the defendant and others also murdered the woman's 1 State /•. Wintzinircrodc. Orcg. & 20 Neb. 23.S (1880); s.c. 57 Am. 153 (1881). ' ' Hep. 825; 20 N. W. Kop. Oil. 2 39 N. Y. 245 (18(58). « 1 Houst. Cr. Cas. (Del.) 371 3 9 Tex. App. 476 (1881). (187.*.). * .33 La. An. 782 (1881). ' 98 Pa. St. 338 (1881). SEC. 473.] EVIDENCE — COMPETENCE. 517 husband at the same time and phice, and afterwards took and cairied away money which was on the premises. Evidence that the defendant knew of the existence of this money, and where it was kept, was hekl to be admissible to show motive.^ Sec. 473. Same — - 1 ni proper devotion to or criminal intimacy with a female. — On the trial of an indictment for murder, it is proper for the prosecution to introduce against the defendant evidence of improper devotion to or crim- inal intimacy with a female, to which devotion or intimacy the deceased was an obstacle, in order to show motive in the de- fendant for killing the deceased.'^ Thus on the trial of a prisoner for the murder of his wife, proof that the prisoner, during the year preceding the homi- cide, applied to the mother of a single woman for permission to visit her daughter, and was denied it because he was a married man, is admissible, to sliow the motive for his com- mission of the crime .^ So also is evidence of an incestuous intercourse,"^ of immediate remarriage,^ declarations of inten- ^ Upon a trial for murder, where it appears tliat defendant was bail for deceased, evidence tliat defendant said deceased had threatened to ex- pose liis (defendant's) criminal acts; that defendant had agreed to furnish money to deceased, and failed ; and that deceased had a policy of insur- ance upon Iiis life, whicli defendant was to receive, is admissible to show a motive for the crime. State v. Kainsbarger, 71 Iowa, 746 (1887). 2 See Marler v. State, 67 Ala. 55 (1881) ; Hall v. Slate, 40 Ala. 698 (1867) ; Felix v. State, 18 Ala. 720 (1851) ; State v. Green, 35 Conn. 20.'. (1868) ; State v. Waikins, 9 Conn. 47 (1831); s.c. 21 Am. Dec. 712; Fraser v. Slate, 55 Ga. 325 (1875) ; s.c. 1 Am. Cr. Kep. 315; State v. Hinkie, 6 Iowa, 380 (1858) ; St. Louis v. State, 8 Neb. 405 (1879) : Pierson v. People, 79 N. Y. 424 (1880) ; s.c. 35 Am. Rep. 524 ; Stephens r. People, 4 Park. Cr. Cas. (N. Y.) 396 (1859); Stout v. People, 4 Park. Cr. Cas. (N. Y.) 71 (1858) ; Commonwealth v. Ferrigan, 44 Pa. St. 386 (1863); Traverse v. State, 61 Wis. 144 (1884) ; s.c. 6 Cr. L. Mag. 103. 3 Felix V. State, 18 Ala. 720 (1851). * In Stout V. People, 4 Park. Cr. Cas. (N. Y.) 71 (1858), the prisoner and his sister, Mrs. L., were indicted for tlie murder of L. On the separate trial of the prisoner, evidence was given tending strongly to show that the prisoner and Mrs. L. were both present at the homicide, and that it was the result of a violent strnggle, in which all three were in some way engaged ; that the deceased had been jealous of his wife; that they had lived unhappily together, and had quarreled and been partially sepa- rated; and that she had applied to an attorney to procure a divorce from her husband. The prosecution then offered evidence tending to show an incestuous connection between the prisoner and Mrs. L. during a few months immediately preceding the homicide. Held, that such evidence was competent on the question of motive. 5 In State v. Green, 35 Conn. 203 518 HOMICIDE. [chap. XXII. tions,^ and anonymous letters shown to have been written and mailed by the accused.^ It is said by the Supreme Court of Georgia in the case of Fraser v. State-"^ that upon a trial for murder all the testimony going to show motive is material to the issue, because there can be no murder without malice and no malice without motive. Therefore, testimony to the effect that the defendant had step-children living with him, who left him at night and were taken in and cared for by the deceased ; that the reason which particularly induced them to do so was the fact that he had lived in illicit cohabitation with one of the girls, and wished to marry her, coupled with the other fact that the deceased had taken care of these children, and refused to give them up, and resisted a habeas corpus suit for them, is admissible as showing motive for, and malice in, the homi- cide. Sec. 474. Same — Marital infidelity. — Proof of the in- fidelity of the wife towards her husband may be admissible upon the trial of an indictment against the husband for the murder of the wife, where it is shown that the defendant knew of such infidelity of his wife at the time of the killing ; but where such knowledge by him is not shown, such proof of infidelity is incompetent.* (1868), the prisoner was indicted and suit, already begun by M., to show- tried for the murder of a woman to motive. Marler v. State, 67 Ala. 55 whom he had been married, and witli (1881). whom he was living as his wife, held, ^ !„ Stephens v. People, 4 Park, that evidence by the prosecution was Cr. Cas. (N. Y.) 396 (1859), an anony- admissible to show that the accused nious letter, proved to have been had a former wife still living; that written by the prisoner, and sent to he had married the deceased under S. C, reflecting upon the character of an assumed name, and that he had S. B., a young lady of whom S. C. married another woman within five was the suitor, was held admissible in weeks after the murder; such evi- evidi^'nce against the prisoner, on a dence being admitted to repel the question of motive, on a trial for presumption of conjugal affection on murder of the prisoner's wife by the part of the accused. poisoning, it being charged, and there 1 On trial of M. for murder of C, being circumstances tending strongly testimony of R. that M. stated to him to show, that the object of the pris- that he, M., was tired of his wife, and oner in committing the alleged mur- intended to get a divorce from her, der was to enable him to marry S. B. and wanted permission to marry his, » 55 Ga. 325 (1875) ; s.c. 1 Am. R.'s, daughter, held admissible in con- Cr. Rep. 315. nection with evidence that C. was an * Phillips ;•. State, 2 Tc.x. App. 139 obstacle to the success of the divorce (1887) ; s.c. 2 S. W. Rep. 601. SEC. 476.] EVIDENCE — COMPETENCE. 519 Sec. 475. Same — Jealousy. — In order to show a motive in defendant for the connnission of the homicide, it is proper to prove that the deceased and the defendant were both suitors of the same woman, and that the defendant was jeahjus of the deceased.^ It is said in Hunter v. State ^ that where, upon the trial of an indictment for murder, there is evidence that the accused was a rejected and the deceased an accepted suitor for the same woman, the fact that rumors of such engagement, and of the approacliing marriage, were repeated to the accused, may be admitted as a fact to show motive for the crime.^ Sec 476. Same — Reveug-e. — It is always proper to in- troduce evidence showing feelings of hatred and revenge by the defendant towards the person killed, as furnishing a motive for the commission of the murder charged.* Thus on a trial for murder, evidence that the defendant had previously been convicted of a burglary of the deceased's house, and had just returned from serving out his sentence therefor, is admissible to show motive.^ And it has been held not to be error on a trial for murder to permit a witness to testify that he, as foreman for the deceased and his partner, discharged the defendant twice from their employ, and that the last discharge was about six weeks before the killing, in order to show a motive for the killing.^ In State v. Lawlor'^ the corpus delicti having been proved, and testimony intro- duced tending to connect the defendant with the commission of the crime, it appeared that the deceased, shortly before the homicide, had assaulted a woman in the defendant's com- pany. The court held that the state might show that the 1 Hunter v. State, 43 Ga. 483 she would prove a curse to any man, (1871) ; McCue v. Commonwealth, 78 and now it had come to pass. Pa. St. 185 (1875) ; s.c. 1 Am. Cr, * People v. Kern, 61 Cal. 244 Rep. 268. (1882). See Morrison v. State, 84 2 43 Ga. 483 (1871). Ala. 405 (1887) ; s.c. 4 So. Rep. 402 ; 3 In McCue v. Commonwealth, 78 State v. Lawlor, 28 Minn. 216 (1881) ; Pa. St. 185 (1875); s.c. 1 Am. Or. s.c. 9 N. W. Rep. 698; Powell v. Rep. 268, on a trial for murder, for State, 13 Tex. A pp. 244 (IS tl>e purpose of showing motive, evi- ° Powell v. State, 13 Tex. App. dence is admissible that tlie prisoner 244 (1883). and the deceased both visited the '' Morrison v. State, 84 Ala. 405 same woman, and that just after the (1887) ; s.c. 4 So. Rep. 402. homicide, the prisoner said he had ^ 28 Minn. 216 (1881) ; 9 N. W. warned the deceased not to visit her, Rep. 698. - 520 HOMICIDE. [chap. XXII. defendant and the woman were paramours, as tending to sliow a motive on the part of the defendant to commit the crime. Sec. 477. Proof of iusauity. — The evidence which is required to establish the insanity of the defendant must be direct, positive, and applicable to the present condition of the prisoner. Insanity cannot be proved by reputation,^ nor can it be inferred from an unnatural homicide,^ nor from the overwhelming barbarity.^ Neither can insanity be inferred from the fact that no motive is shown in the defendant for committing the homicide."^ But evidence of prior insanity is admissible as properly bearing upon the question ; ^ and so is proof of the insanity of other members of the defendant's family.^ Thus in the case of Hagan v. State ' it is held to be error to refuse to permit an inquiry into the mental condition of the defendant's immediate relations. It is said in State v. Hoyt,^ that where the defendant, for the purpose of proving his own insanity, introduces evidence that his sister had been in- sane, the counsel for the state may be allowed to inquire what caused her insanity, in order to show that it was not heredi- tary. But in the recent case of Hall v. Commonwealth,^ a trial for murder, the defence being insanity, it having been shown that the defendant had, since his seventh year, been subject to epileptic fits, it was held that evidence tending to show that the defendant's child, then a girl six years of age, had a spasm when born, and had been subject to such fits ever since, and that there was no one in her mother's family who had ever had such fits, was properly excluded. 1 State u. Hoyt, 47 Conn. 518 ^ state v. Felter, 25 Iowa, 67 (1880) ; s.c. 36 Am. Rep. 89 ; Walker (1868) ; s.c. 2 Cr. Def. 92 ; United V. State, 102 Iiid. 502 (1885) ; s.c. States v. Guiteau. 10 Fed. Rep. 161 1 N.'E. Rep. 856; Hall v. Common- (1882); s.c. 3 Cr. L. Mug. 447, 680; wealth, 10 Cr. L. Mag. (Pa.) 409 16 Am. Law Rev. 85; 2 Cr. Def. 163. (1888) ; s.c. 12 Atl. Rep. 163. « State v. Hoyt, 47 Conn. 518 •^ State V. Coleman, 20 S. C. 441 (1880) ; s.c. Law. Insan. 92. See Hall (1883). f. Commonwealth, 10 Cr. L. Mag. 8 United States v. Guiteau, 10 Fed. (Pa.) 409 (1888); s.c. 12 Atl. Rep. 163, Rep. KJl (1882) ; s.c. 3 Cr. L. Mag. Hagan r. State, 5 Raxt. (Tenn.) 615 347, 680; 16 Am. Law Rev. 85; 2 Cr. (1875); s.c. Law. Insnn. 833. Def. 163. ^ 5 Baxt. (Tenn.) 615 (1875) ; s.c. •« State V. Stark, 1 Strobh. (S. C.) Law. Insan. 833. L. 479 (1847) ; United States v. Gui- ^ 47 ^onn. 518 (1880). teau, 10 Fed. Rep. 161 (1882) ; s.c » 10 Cr. L. Mag. (Pa.) 409 (1888) ; 3 Cr. L. Mag. 347, 680 ; 16 Am. Law s.c. 12 Atl. Rep. 163. Rev. 85 ; 2 Cr. Def. 163. SEC. 477.] EVIDENCE — COMPETENCE. 521 Where insanity is set up, the defendant's coolness and unconcern may be considered, but in such a case it is proper for the prosecution to show facts which may rebut the inference that such coolness and unconcern could only arise from an abnormal condition of the mind.^ And it may be generally said that it is proper to consider the general con- duct, condition, appearance, and language of the defendant in determhiing the question raised by the jjlea of insanity .^ Thus evidence may be introduced showing an attempt to commit suicide ; ^ the collection of valueless articles,'* and that the defendant's mind has been unhinged by domestic trouble ^ 1 Thus ill Hopps v. People, 31 III. .385 (18(3:]) ; s.c. 83 Am. Dec. 231 ; Law. Insan. 414, it was held that wiiere the defence is insanity, and the coolness and unconcern of the pris- oner at the time he committed the homicide are relied upon as justifying inferences favorable to the plea, it is competent to show that the prisoner had been in early years engaged in the perilous calling of smuggling, as tendhig to rebut the inference that liis deportment on the fatal occasion was attributable to a want of sanity. 2 See State i-. West, 1 Houst. Cr. Cas. (Del.) 371 (1873) ; State v. Jones, 64 Iowa, 349 (1884); s.c. 17 N. W. Rep. 911; 20 N. W. Rep. 470; Spen- cer V. State, 69 Md. 28 (1888) ; s.c. 13 Atl. Rep. 809; State v. Shoultz, 25 Mo. 128 (1857) ; State v. Anderson, 4 Nev. 265 (18(58) ; Sanchez v. People, 22 N. Y. 147 (1860) ; Patterson v. People, 46 Barb. (N. Y.) 625 (18(i6) ; People V. Thurston, 2 Park. Or. Cas. (N. Y.) 49 (1852) ; Jacobs v. Com- monwealth, 121 Pa. St. 586 (1888) ; s.c. 15 Atl. Rep. 465; Hall v. Com- mon wealtli, 10 Cr. L. Mag. (Pa.) 409 (1888) ; s.c. 12 Atl. Rep. 163 ; Co,/!e v. Commonwpnlth, 100 Pa. St. 573 (1882) ; s.c. 45 Am. Rep. 307 ; Spence r. State, 15 Lea (Tenn.) 539 (1885) ; Rurkhard V. State, 18 Tex. App. 599 (1885). ^ An attempt to commit suicide raises no legal presumption of insan- ity, but may be considered in connec- tion with other evidence bearing on the question of insanity. Coyle v. Commonwealth, 100 Pa. St. 573 (1882) ; s.c. 45 Am. Rep. 397. ■* In the case of State v. West, 1 Houst. Cr. Cas. (Del.) 374 (1873), the counsel for the defendant was allowed to produce in court a number of value- less articles collected by the defendant for a museum. 5 Burkhard v. State, 18 Tex. App. 599 (1885). But in Spencer v. State, 69 Md. 28 (1888) ; s.c. 13 Atl. Rep. 809, where it appeared that the de- ceased had assaulted the prisoner's wife before her marriage ; that, after her death, prisoner called on the de- ceased, induced him to walk with him, accused him of his crime, and then shot and killed him, counsel for pris- oner proposed to prove that before the wife's death she had attributed her illness immediately to the assault by the deceased ; that the dead body of his wife, with the scars inflicted by the deceased, would appear to pris- oner in his dreams ; that he was haunted with the idea that so long as the deceased lived he would have no rest or peace of mind ; and that since tlie death of the deceased the prisoner had found rest and quiet. On appeal it WHS held that the trial court did not err in refusing to admit such tes- timony as evidence of insanity; coun- sel declining to assure the court that he would follow the proof of these facts with other proof that at the time of the homicide the prisoner wns insane and not responsible for his actions. 522 HOMICIDE. [chap. xxri. or the use of liquor,^ but isolated incidents relied on to show insanity, are of little weight on a trial for murder, where their peculiarities can be traced to the excessive use of liquor,^ and where the person has generally been deemed sane, and has always been dealt with as such.^ And evidence that, from the weak and crippled condition of the defendant, he was rendered nervous and peculiarly sensitive to fear and external violence is admissible.'* The inquiry may extend to a reasonable length of time before the homicide, as well as to the time of its immediate commission,^ and also to the action of the defendant and to his condition subsequent thereto, because such conditions are so connected with evidence of a previous state of insanity as to warrant an inference of its continuance at the time of the killing.*^ *• Sec. 478. Same — Excessive use of liquors. — On a trial for murder, where the defence was mental irresponsibility, it was shown that the accused was a hard and habitual drinker, but was quite sober when he committed the act. A medical expert, after examination, thought him entirely capable of appreciating what transpired about him, and in answer to an hypothetical question, which failed however to state with exactness the prisoner's habits and circumstances, said he would be incapable of discriminating the quality of his acts. But two physicians saw no indications of mental unsound- ness, and thought his conduct at the time of the killing and afterward showed a consciousness of the nature of the deed. The accused had conducted his business of huckstering with a measui'able degree of sagacity and success. The court held 1 Burkhard v. State, 18 Tex. App. Where the defence was insanity, 599 (1885). befrinning in 1885, and defendant was 2 See yjos/, § 478. permitted great latitude^ in showing 3 Spence r. State, 15 Lea (Tenn.) tlie cliange in liis disposition from 5.39 (1885). that date until the homicide, the re- * State V. Slioultz, 25 Mo. 128 fusal of evidence as to his kindly na- (1857). ture prior to 1885 worked no harm to ^ State I'. Jones, G4 Iowa, 349 defendant. Webber r. Commonwealth, (1884) ; Commonwealth v. Pomeroy, 119 Pa. St. 223 (1888) ; s.c. 4 Am. St. 117 Mass. 143 (1875); s.c. Law. In- Rep. 634 ; 13 Atl. Rep. 427. san. 799; Sanchez v. People, 22 N. Y. ^ Commonwealth r. Pomeroy, 117 147(1800); Webber (-.Commonwealth, Mass. 143 (1875) ; s.c. Law. Insan. 119 Pa. St. 223 (1888); s.c. 4 Am. 799. St. Rep. 634 ; 13 Atl. Rep. 427. SEC. 479.] EVIDENCE — COMPETENCE. 523 on appeal that there was no evidence of mental unsoundness to wan-ant interference with the verdict of murder in the first degree. ^ Sec. 479. Same — Expert and opinion evidence — Ex- perts. — Upon the trial of an indictment for homicide, an expert witness may give his opinion upon any state of facts which is established, or which is assumed to have been established, not only as to the nature and effect of the injury which caused the death, but also as to the manner and the means employed. ^ Thus a medical expert may give testimony as to the direction from which blows were received, and the character of the instrument Avitli which the injuries were inflicted ; ^ may testify from the appearance of the wound through the hand, whether or not it was made wliile the liand was pressed over the muzzle of a revolver;* may testify as to the effect of medicine administered and the extent of wounds ; ^ may testify as to tlie effects of poison where his knowledge is acquired by experience,^ and V. People, 4 Park. Cr. Cas. (N. Y.) 319 (1859); People v. Williams, 3 Park. Cr. Cas. (N. Y.) 84 (1855); Pierson v. People, 18 Hun (N. Y.), 239 (1879) ; Soquct v. State, 72 Wis. 659 (1888) ; s.c. 40 N. W. Kep. .391. 3 Territory v. Egaii, 3 Dak. 119 (1882). * State V. Mahan, 68 Iowa, .304 (1886). ^ On a trial for murder for poison- ing, a medical witness who has testi- fied as to the treatment of the de- ceased may, on cross-examination, be asked as to the effect of the medi- cines administered; also as to whether he was under the impression, at the time of treatment, that the deceased's intestines were severed by tlie knife iised by tlie accused. Batten i-. State, 80 In d' 394 (1881). s On a trial for murder by poison- ing, a medical witness is not qualified to give an opinion that the symptoms of the last sickness of the deceased indicated poison by arsenic, wlien he has never seen a case, nor liad any exjiericnce whatever in cases of arsen- ical poisoning, and that all he knows ^ People V. Kenimler, 119 N. Y. (1890) ; s.c. 24 X. E. Kep. 9; 41 Alb. L. J. 464. ^ Wi/liaws V. Slate, 64 Md. 384 (1885); s.c. 5 Am. Cr. Rep. 512; 1 Atl. Rep. 887. See Territory v. Egan, 3 Dak. 119 (1882) ; Newton v. State, 21 Fla. 53 (1884) ; Batten v. State, 80 Ind. 394 (1881); State v. Mahan, 68 Iowa, 304(1886) ; s.c. 20 N. W. Rep. 449; 27 N. W. Rep. 249; State v. Vin- cent, 24 Iowa, 570 (1868) ; s.c. 95 Am. Dec. 753; State v. Hinkle, 6 Iowa, 380 (1858) ; State v. Baldwin, .36 Kan. 1 (1886) ; s.c. 9 Cr. L. Mag. 50; 12 Pac. Rep. 318, affirmed s.c. 7 Cr. L. Mag. 512 ; Ccminnnwpalth v. Stnrtirant, 117 Mass. 122 (1875); s.c. 19 Am. Rep. 401 ; People v. Foley, 64 Mich. 148 (1887); s.c. 9 Cr. L. Mag. 345; 31 N. W. Rep. 94 ; People v. Barker, 60 Mich. 277 (1886) ; s.c. 1 Am. St. Rep. 501 ; State v. Brooks, 92 Mo. 542 (1887) ; s.c. 5 S. W. Rep. 257, .3-30 ; People V. Willson, 109 N. Y. 345 (1888) ; s.c. 16 N. E. Rep. ,540; Pier- son V. People, 18 Hun (N. Y.) 2.39 (1879); Stephens r. People, 4 Park. Cr. Cas. (N. Y.) 396 (1859) ; Hartung 524 HOMICIDE. [chap. xxii. may give testimony as to the suiliciency and identity of the poison.^ In the trial of an indictment for infanticide where there are no marks of violence upon the deceased, it is not erroneous to admit the testimony of an expert to the effect that there were several modes of causing death without leaving upon the body any evidence of the means employed ; ^ and the expert may give testimony that he saw another physician, at an autopsy on the body of the deceased, pass his linger down the trachea, and also up into the larynx, such testimony being for cident to their profession and otlier- wise, in:;luding a general knowledge of tlie tests of the presence of strych- nine. The court held that they were experts, but that tlie jury should judge as to the value of their testimony. State V. Hinkle, (1 Iowa, 380 (1858). On tlie trial of an indictment for murder by poison, after an opinion adverse to the theory of the prosecu- tion liad been expressed by a physi- cian, drawn from the appearance of the autopsy, an experienced chemist, who iiad assisted at the post mortem, was asked : " In your opinion, can a pliysician, from the appearance of the stomach after death, determine witli any degree of certainty the precise period when the poison (arsenic) first began to affect it." The court lield that tlie q\u'stion was competent. Hartung V. People, 4 Park. Cr. Gas. (N. Y.) 319 (1850). - State V. Morgan, 95 N. C. 041 (1886). In a prosecution for tlie mur- der of an infant, upon a hypothetical statement of the condition of the cliild's body when found, and also on post mortem examination some days afterwards, the question propounded to a physician, as an expert: " Wliat, in your opinion, caused the death of tlie child?" and "in your opinion is tl'.ere any disease which would pro- duce deatli, accompanied by the con- ditions stated in the hypothetical case, in an infant healthy and all right in every respect at birth? " were properly allowed. People v. Foley, 64 Mich. 148 (1887); s.c. 9 Cr. L.' Mag. 345; 31 N. VV. Rep. 94. on the subject is derived from medical or scientific books and medical in- struction. Soquet V. State, 72 Wis. 659 (1888) ; s.c. 40 N. W. Rep. 391. 1 In a trial for murder it was claimed that the murder was commit- ted by administering arsenic to the deceased in a bowl from which tea and toast had been fed to the deceased by the prisoner. Tlie evidence tended to show that the bowl was the one de- livered to the physician who analyzed its contents at the request of the gov- ernment. Tiie court held that the ques- tion of suflaciency of identification of the bowl was for the jury, and that the physician might testify to the condi- tion and contents of the bowl, and the results of his analysis, tliough the evidence as to the identity of the bowl was not positive. People v. Williams, 3 Park. Cr. Cas. (N. Y.) 84 (1S.J5). It is competent to ask a physician, on his cross-examination, to give his opinion whetiier certain symptoms, particularly specified, were those of arsenical poisoning, when the witness has previously given testimony in re- lation to the same subject-matter, and where the symptoms inquired about are the same of which evidence had been previously given by another wit- ness. Stephens v. People, 4 Park. Cr. Cas. (N. Y.) 396 (1859). The question being as to whether strychnine was found in tlie stomach of the deceased, two physicians testi- fied that they were not practical chem- ists, but had considerable knowleilge of chemistry from their reading and experimenting to some extent, as in- SEC. 481.] EVIDENXE — COMPETENCE. 525 the purpose of showing that there was no obstruction by which the deceased might have choked to death, and is not objectionable because such looker-on could not tell whether the finger met any obstruction.^ A witness familiar with blood, who has examined, with a lens, a blood stain on a coat, when it was fresh, may properly testif}^ that it appeared to have come from below upwards, although he had never experimented with blood or other fluid in that respect.^ Sec. 480. Same — Skilled Avorknien. — And skilled work- men may be permitted to give evidence regarding matters pertaining to tlieir trade or avocation. Thus in State v. Bald- win 2 a panel had been cut and taken from the outside door of the house where the offence was committed; and when the defendant, who was a carpenter, was arrested, a knife was found on his person ; Avitnesses who were skilled workers in wood were called and permitted to testify that the panel had been cut out with a knife, and that the blade of the defend- ant's knife exactly fitted the place where the panel had been pierced ; that it had been cut from the outside by one skilled in the use of tools, and was evidently taken out by one who understood the construction of a door. Sec. 481. Same — Experts in insanity cases. — It is com- petent for medical experts, or experts in insanity, to testify upon the question of the insanity of the defendant according to an assumed state of facts hypothetically submitted to the witness,* or from his own opinion shown to have been formed 1 People V. WiUson, 109 N. Y. 345 wealth, 14 Bush (Ky.), 398 (1878) ; (1888) ; s.c. 16 N. E. Rep. 540. Commonwenlth v. mx/ers, 48 Mass. 2 Commonwealth I'. Sturtivant, 117 (7 Mete.) 500 (1844); s.c. 41 Am. Mass. 122 (1875); s.c. 19 Am. Rep. l)ec. 458; Sanchez f. People, 22 N. Y. 401. 147 (18fi0) ; People r. Schuyler, 43 3 36 Kan. 1 (1886); s.c. Cr. L. Hun (N. Y.), 88 (1887); State v. Mag. 49, 50 ; 12 Pac. Rep. 318 ; affirm- Hayrlen, 51 Vt. 296 (1878). ing 7 Cr. L. Mag. 512. A iiypothetical question as to the * See Gunter v. State, 83 Ala. 96 sanity of the defendant, put to a phy- (1887); s.c.lOCr. L.Mag. 428; (7i(p/(7v. sician employed to treat prisoners State, 66 Ind. 94 (1879) ; s.c. 32 Am. confined in jail, wliicli did not assume Rep. 99; Law. Insan. 455; State r. the existence of any fact wliich re- Hockett, 70 Iowa, 442 (1886) ; s.c. 9 lated to the defendant's pliysical or Cr. L. Mag. 208; 30 N. W. Rep. 742 ; mental condition or conduct, while in State V. Townsend, 66 Iowa, 741 jail, or of any fact wJiicii the witness (1885); s.c. 7 Cr. L. Mag. 65; 24 could have learned while attending N. W. Rep. 535; Brown v. Common- the defendant in a professional capac- 526 HOMICIDE, [chap. XXII. on observation of the defendant — his language and conduct — and from association with him.i In some states, however, the opinion of an ordinary physician will not be received ; he must be shown to be conversant with insanity, have made a study of tlie subject, and had experience with the insane.^ But in those states the opinion of a physician not shown to be an expert is admissible in evidence, where the physician gives the facts on which he bases his opinion,^ as is done by non-professional witnesses. Sec. 482. Same — Opinions of non-professional wit- nesses as to insanity. — Where the defence set up is the insanity of the defendant, it is permissible for a non-expert ity, but simply called upon him to give his opinion, based exclusively upon facts assumed to have occurred before defendant was known to the witness, has been held competent under New York Code Civil Proced- ure, section 834. People v. Sciiuyler, 43 Hun (N. Y.), 88 (1887). And the fact that the witness testified he did not think it possible to answer the question without being influenced by the opinion formed while acting as the defendant's physician, did not render his testimony competent. Peo- ple V. Schuyler, 43 Hun (N. Y.), 88 (1887). 1 Brown u. Commonwealth, 14 Bush (Ky.),398 (1878); State v. Hayden,51 Vt. 296 (1878). Compare Sanchez V. People, 22 N. Y. 147 (1860) ; Peo- ple V. Schuyler, 43 Hun (N. Y.), 88 (1887). See Gunter v. State, 83 Ala. 96 (1888); s.c. 10 Cr. L. Mag. 428: 3 So. Rep. 600; Tullis v. Kidd, 12 Ala. 648 (1847); Grant v. Thomp.^ou, 4 Conn. 203 (1822) ; s.c. 10 Am. Dec. 119; Burley i-. McGough, 115 111. 11 (1885) ; Goodwin v. State, 96 Ind. 550 (1884); Coryell r. Stone, 02 Ind. 307 (1878) ; Davis v. State, 35 Ind. 496 (1871) ; State v. Foltes, 51 Iowa, 495 (1879) ; State v. Felter, 25 Iowa, 67 (1868) ; People v. Hall, 48 Mich. 482 (1882) ; White v. Bailey, 10 Mich. 155 (1862) ; State v. Baber, 74 Mo. 292 (1881) ; People v. Schuyler, 106 N. Y. 298 (1887); Van Zandt v. Mutual Ben. L. Ins. Co., 55 N. Y. 169 (1873) ; Sanchez v. People, 22 N. Y. 147 (1860) ; People v. Lake, 12 N. Y. 358 (1885) ; s.c. 1 Park. Cr. Cas. (N. Y.) 495; Landis v. Landis, 1 Grant fPa.), 249 (1855; ; liambler v. Tri/07i, 7 Serg. & K. (Pa.) 90 (1821); sx. 10 Am. Dec. 444 ; Lord v. Beard, 79 N. C. 5 (1878); Puryear v. Reese, 46 Tenn. (6 Cold.) 21 (1868) ; Gibson ;;. Gib- son, 9 Yerg. (Tenn.) .329 (1836); Fairchild v. Bascomb, 35 Vt. 398, 408 (1802); Dejarnett i\ Commonwealth, 75 Va. 867 (1881) ; Quaife v. Chicago & N. W. R. Co., 48 Wis. 513 (1879) ; Matter of Will of Blakeley, 48 Wis. 294 (1879) ; Connecticut Mat. Life Ins. Co. V. Lathrop, 111 U. S. 612 (1883) ; bk. 28 L. ed. 5-36; Dexter ;•. Hall. 82 U. S. (15 Wall.) 9 (1872); bk. 21 L. ed. 73; United States v. Gulteau, 10 Fed. Rep. 161 (1882) ; s.c. 3 Cr. L. Mag. 347 ; 16 Am. Law Rev. 85, 2 Cr. Def . 103. - Commonwealth v. Rich, 80 INIass. (14 Gray) 335 (1859). See Reed v. State, 62 Miss. 405 (1884). See In- habitants of Fayette v. Inliabitants of Chestervillc, 77' Me. 28 (1885) ; s.c. 52 Am. Rep. 741. 3 See Dickinson r. Barber, 9 Mass. 225 (1812) ; s.c. 6 Am. Dec. 58; Ha- thorn V. King, 8 Mass. 371 (1811); s.c. 5 Am. Dec. 100. SEC. 483.] EVIDENCE — COMPETENCE. 527 witness to give his opinion upon the question of the defendant's sanity, where such opinion is formed upon facts and circum- stances within his personal knowledge and observation, and these facts and circumstances are fully set forth. ^ Sec. 483. Same — Non-experts. — While it is a rule, gen- erally recognized, that Avitnesses not called as experts must testify only to facts, yet, facts which are made up of a great variety of circumstances, or combination of appearances, in- competent of full description, may be shown by the opinions of ordinary witnesses where their observation has been sufficient to justify it. Upon this principle, opinion evidence is com- petent as to matters involving quantity, magnitude, length of time, space, motion, or value, and as to the appearance and condition of persons or things, as grief, excitement, anger, or fear.2 But the observation of the witness, and, consequently, his opportunity therefor, must have been sufficient to have afforded reasonable ground for the formation of an opinion ; V. Wood, 55 N. Y. 634 (1873) ; O'Brien V. People, 36 N. Y. 276 (1867) ; s.c. 48 Barb. (N. Y.) 274 ; Clapp v. TuUer- ton, 34 N. Y. 190 (1866) ; DeWitt (,•. Barly, 17 N. Y. 342 (1858) ; Clary v. Clarv, 2 Ired. (N. C.) L. 78 (1841) ; C/m-k V. State, 12 Ohio, 483 (1843); s.c. 40 Am. Dec. 481 ; Pidcock v. Potter, 68 Pa. St. 342 (1871) ; s.c. 8 Am. Rep. 181 ; Wilkinson v. Pearson, 23 Pa. St. 119 (1854) ; Norton r. Moore, 3 Head (Tenn.) 482 (1859) ; Dove v. State, 3 Heisli. (Tenn.) 348 (1872) ; Holconib V. State, 41 Tex. 125 (1874); Mc- Clackey v. State, 5 Tex. A pp. 320 (1879) ; State v. Hayden, 51 Vt. 296 (1878) ; Hatliaway r. Nat. L. Ins. Co., 48 "Vt. .335 (1875) ; Morse v. Crawford, 17 Vt. 499 (1845) ; Dejarnette v. Com- monwealtli, 75 Va. 867 (1881); Con- necticut ]Miit. Life Ins. Co. v. Lathrop, 111 U. S. 612 (1884) ; bk. 28 L. ed. 5.36; Charter Oak Life Ins. Co. i-. Rodel, 95 U. S. (5 Otto) 232 (1877) ; bk. 24 L. ed. 433; Rex v. Wright, R. & R. Cr. Cas. 456 (1821). - See State v. Baldwin, 36 Kan. 1 (1886) ; s.c. 9 Cr. L. Map:. 49 ; 12 Pac. Rep. 318, affirming; s.c. 7 Cr. L. Mag. 512. 1 Powell V. State, 25 Ala. 28 (1854); People V. Wreden, 59 Cal. 392 (1881) ; People V. Sanford, 43 Cal. 29 (1872) ; Dunham's Appeal, 27 Conn. 193 (1858) ; Grant r. Thompson, 4 Conn. 203 (1822; ; Duffield v. Morris, 2 Harr. (Del.) 375 (1838) ; Potts v. House, 6 Ga. 324 (1849) ; Upstone r. People, 109 111. 169 (1883); Rutherford v. Morris, 77 III. 397 (1875) ; Colee v. State, 75 Ind. 511 (1881) ; State v. Newlin, 69 Ind. 108 (1879) ; Eggers V. Eggers, 57 Ind. 461 (1877) ; Suther- land r. Hankins, 56 Ind. 343 (1877) ; Leach v. Prebster, 39 Ind. 492 (1872) ; Doe V. Reufjan, 5 Blackf. (Ind.) 217 (18.39) ; s.c. 33 Am. Dec. 466 ; Butler V. St. Louis Ins. Co., 45 Iowa, 93 (1876) ; Brooke v. Townshend, 7 Gill. (Md.) 10 (1848) ; State ;•. Klinger, 46 Mo. 229 (1870); Polin v. State, 14 Neb. 540 (1883) ; s.c. 16 N. W. Rep. 898; Schlencker v. State, 9 Neb. 241 (1879) ; s.c. 1 N. W. Rep. 857 ; Hardr/ V. Merrill, 56 N. H. 227 (1875) ; s.c. 22 Am. Rep. 441, overruling State v. Pike, 49 N. H. .399 (1870) ; s.c. 6 Am. Rep. 5.33 ; Vanauken's Case, 10 N. J. Eq. (2 Stockt.) 190 (1854); People i'. Conroy, 97 N. Y. 62 (1884) ; Hewlett 528 HOMICIDE. [chap. XXII. and the question must not be so special or technical as to exclude the idea of competent judgment by the opinion of professional witnesses.^ Thus non-experts may give evidence as to the cause of the homicide where death did not ensue immediately after the infliction of the wound ; ^ as to the feeling of good or ill will existing between the defendant and the deceased;^ and to a non-expert witness may testify whether the defendant in a murder case, on a particular occasion, manifested any anger at the deceased ; ^ as to the similarity of tracks ; ^ as to blood spots on garments or elscAvhere ; ^ as to the identity or resemblance 1 Rash V. State, Gl Ala. 89 (1878) ; People V. Bell, 49 Cal. 480 (1875); Blackmail v. State, 80 Ga. 785 (1888) ; s.c. 7 S. E. Rep. 620; Thomas v. State, 07 Ga. 400 (1881) ; Everett v. State, 02 Ga. 05 (1878) ; McGhinis v. State, 31 Ga. 230 (1800) ; Fiiixly i: State, 30 Ga. 400 (1800) ; Hawkins v. Slate, 25 Ga. 207 (1858) ; s.c. 71 Am. Dee. 100 ; Slate V. Donnelhi, 09 Iowa, 705 (1880) ; s.c. 58 Am. Rep. 234; 27 N. W. Kep. 309; State c. Malum, 08 Iowa, 304 (1886); s.c. 20 N. W. Rep. 449; 27 N. \y. Rep. 249; State v. Shelton, 04 Iowa, 333 (1884) ; s.c. 20 N. W. Rep. 459; State i'. Muklleham, 02 Iowa, 150 (1883) ; s.c. 17 N. W. Rep. 440 ; State V. Stackhouse, 24 Kaii. 447 (1880); Wise v. State, 2 Kan. 419 (1804); s.c. 85 Am. Dec. 595; Ken- nedy V. Commonwealth, 14 Bush (Ky.) 340 (1878); People v. Olmstead,' '.\{) Mich. 431 (1874) ; s.c. 1 Am. Or. Rep. 301; State v. Houser, 28 Mo. 233 (1859) ; People v. Deacons, 109 N. Y. 374 (1888); s.c. 10 N. E. Rep. 070; I'eople V. Fernandez, 35 N. Y. 49 (1806) ; People ('. Wilson, 3 Park. Cr. Cas. (N. Y.) 199 (1850) ; Uihlerzook V. Commonwealth, 70 Pa. St. 340 (1874); Smith v. State, 43 Tex. 043 (1875) ; Cooper v. State, 23 Tex. 331 (1859). 2 Smith V. State, 43 Tex. 043 (1875). '^ State V. Stackhouse, 24 Kan. 447 (1880). 4 State (1884). Shelton, 04 Iowa, 333 (1800). ^ A witness testified, on a trial for murder, as to the resemblance be- tween tracks found near the scene of the homicide and other tracks admit- ted to have been made by the defend- ant. Some of the latter tracks were made under compulsion, and the evi- dence relating to these tracks, and the opinions of witnesses based thereon, were subsequently withdrawn from tiie jury. Held, that refusal to with- draw the opinion of a witness, who stated tliat he was as certain about the tracks before he saw those made under compulsion as after, was not error. Blackman v. State, 80 Ga. 785 (1888) ; s.c. 7 S. E. Rep. 026. fi If, on a trial for murder, the prosecution introduces testimony showing that ccdored spots were found on the prisoner's clothes and person, wliicli it claims were blood, it is not obliged to show by scientific analysis that such spots were blood, but may rely on the opinion of a wit- ness who saw the spots. People v. Bell, 49 Cal. 480 (1875). It is not erroneous on a trial for mur- der to admit evidence from witnesses, who are not chemists, that the clothes worn by the accused on the night of the murder, and j)ro(luced for inspec- tion on the trial, were marked witli stains apparently produced by blood, when found in possession of the ac'cused at the time of his arrest. People f. Fernandez, 35 N. Y. 49 SEC. 484.] EVIDENCE — COMPETENCE. 529 of the remains of the deceased ; ^ but not as to the intent of the defendant ;^ or that he was restless or quiet in manner.'^ And upon the trial of a charge of manslaughter under a stat- ute making the attempt to destroy an unborn child, in certain cases, manslaughter where the death of such child or the mother is thereby produced, evidence of a woman who was with such mother and washed her and chano-ed her clothes the day before she died, as to the appearance of the bed and clothes, and as to the peculiar offensive odor which she ob- served, is competent.* Sec. 484. Same — Experiments. — The admission of tes- timony as to experiments made by experts and others in rela- tion to the manner or means by which the homicide is charged to have been committed, is largely within the discretion of the court, to be decided according to the peculiar facts and circumstances surrounding each separate case. It is gener- ally competent, however, to show the result of experiments made in the proper manner, and under corresponding circum- 1 On the trial of an indictment for the murder of "Goss, alias Wilson," a ijhotograph of Goss, testified to be like a mutilated body found, held to be proper evidence to be submitted to the jury, tliat the body was that of Goss. Udderzook v. Commonwealth, 7G Pa. St. 340 (1874) ; s.c. 1 Am. Cr. Rep. 311. In People r. Wilson, 3 Park. Cr. Cas. (N. Y.) 199 (1856), a brother of deceased on trial for mur- der, testified that five months after the alleged murder he saw a body claimed to be the body of deceased, and examined it. He testified to sev- eral points of resemblance. He was asked by the government whether it was in his opinion the body of the murdered man. Held, that the ques- tion was incompetent, the question being for the jury, the body having been much decomposed and he having stated all the points of resemblance. Where a mutilated body, whose face was discolored and swollen, was found, having been buried apparently for some days, and the one who found it had never seen the person before, held, that he might testify that the face resembled a pliotograph of a person alleged to be the one found, but the question whether the witness could identify it was one for the jury. Udderzook r. Commonwealth, 76 Pa. St. 340 (1874) ; s.c. 1 Am. Cr. Eep. 311. - The opinion of a witness that a person killing anotlier in a fight had an intent to kill the deceased before the fight commenced, is not compe- tent evidence of such intent. Pundy V. State, 30 Ga. 400 (18()0). 3 State v. Middleham, 62 Iowa, 150 (1883) ; s.c. 17 N. W. Rep. 446. One who is not a practising physi- cian may, after describing the wound, give his opinion that; it caused death, and may give his opinion with reasons therefor, that the deceased could not possibly have inflicted the wound him- self. Everett v. State, 62 Ga. 65 (1878). * People V. Olmstead, 30 Mich. 431 (1874) ; s.c. 1 Am. Cr. Rep. 301. ;4 530 HOMICIDE. [chap. XXII. stances to those which, it is claimed, surrounded the commis- sion of the homicide.^ Thus in Commonwealth v. Piper ^ a witness testified that he had made certain experiments upon a dynamometer, an instrument for the measuring of the force of blows and the weight of falling bodies, by striking it with a bat of substan- tially the same form and weight as that with which, as the government contended, the murder was committed. It was held that the court might properly, in its discretion, reject such evidence as tending to mislead the jury, unless the experiments were shown to have been made under conditions the same as those existing in the case on trial. In Common- wealth V. Sullivan ^ it is said that upon a trial for murder the government may show experiments made by shooting with the pistol which gave the fatal wounds at substances similar to the clothing worn by the deceased when killed. And where it is a question whether the fatal shot was fired from a pistol in the hand of the deceased, or from one in the hand of the prisoner, both of which were produced, it is not error for the judge to refuse to allow an expert to experiment with them to ascertain from which the shot came, that being a matter wholly within the court's discretion.'^ But evidence of experiments made by non-professional witnesses with guns and targets is inadmisssible to show that the shooting was done at short range .^ Sec. 485. Medical and scientific books and writings. — INIedical and scientific works and writings are not admissible in evidence for the purpose of proving the declarations and opinions which they contain, unless sanctioned by the oath of an expert witness, who is not, however, confined wholly to his personal experience, but may give his opinion formed in part from the reading of books and writings prepared by other persons of acknowledged al)ility ; and it is not improper for him to give the source of his opinion, and to state, if it 1 See State v. Smitli, 40 Conn. 37G 2 12O Mass. 185 (1870). (1881) ; Conimonwcaltli v. Piper, 120 " lo Pliila. (Pa.) 410 (1870). Mass. 185 (1870) ; State v. Justus, 11 ■» State v. Smith, 40 Conn. 370 Greg. 178 (1883); s.c. 50 Am. Hep. (1881). 470; 6 Am. Cr. Kcp. 511; 8 Pac. Rep. ^ gtate v. Justus, 11 Ore?. 178 337; Commonwealth v. Sullivan, 13 (1883); s.c. 50 Am. Rep. 470 ; Am. Phila. (Pa.) 410 (1879). Cr. Rep. 511. SEC. 486.] EVIDENCE COMPETENCE. 531 be the case, that all the authorities oii the subject have, as far as he knows, supported hira in his opinion.^ And it has been held that scientific or medical books or writings treating of insanity cannot be regarded as legal authority, except as the views set forth are enforced and supported by judicial rulings and decisions.- Sec 486. Hearsay evidence. — Hearsay testimony, as a rule, is admissible to prove no fact which is in its nature sus- ceptible of proof by witnesses testifying of their own knowl- edge.^ Such evidence is not usually admissible either for or against a person upon trial for a liomicide, unless it be of the res (jestce^ and where it is admitted against the defendant, a conviction will be reversed.'' Thus it has been said that on a trial for murder, the declaration of a third person, who had as strong motives as the prisoner to commit the murder, against whom there were strong circumstances of suspicion, and who had left the state, that the prisoner was not the right man, was held to be mere hearsay, and inadmissible for 1 See State i-. Baldwin, 36 Kan. 1 (188G) ; s.c. 9 Cr. L. Mag. 49; 12 Pac. Rep. 318, affirming s.c. 7 Cr. L. Mag. 512; State v. O'Brien, 7 K. I. 336 (1862). - State V. West, 1 Houst. Cr. Cas. (Del.) 371 (1873). 3 Felder v. State, 23 Tex. App. 477 (1887) ; s.c. 59 Am. Rep. 777 ; 5 S. W. Rep. 145 ; citing Bradshaw v. State, 10 Bush. (Ky.) 576 (1874) ; Slielton V. State, 11 Tex. App. 36 (1882) ; Means v. State, 10 Tex. App. 16 (1881); Holt V. State, 9 Tc». App. 572 (1880). * Stephens v. State, 20 Tex. App. 255 (1886) ; Segura v. State, 16 Tex. App. 221 (1885). See People v. Simonds, 19 Cal. 275 (1861) ; People V. Bealoba, 17 Cal. 389 (1861) ; For- man v. Commonwealth, 86 K_v. 605 (1888) ; s.c. 6 S. AV. Rep. 579 ; 'Brown V. People, 17 Mich. 429 (1868) ; s.c. 97 Am. Dec. 195 ; Howser v. Common- wealth, 51 Pa. St. -332 (1865) ; State V. Terrell, 12 Rich. (S. C.) L. 321 (1859). In order to show that deceased had a weapon at the time he was killed, defendant offered to prove by a wit- ness that the witness got from one T. the number of a pistol which T. claimed corresponded with the one delivered by defendant to the officer after shooting deceased, wliich defend- ant testified he took from the body of deceased. Held, hearsay. Forman V. Convnonwealth, 86 Ky. 605 (1888) ; s.c. 6 S. W. Rep. 579. On the trial of an indictment for murder, a witness testified that he saw R., who was supposed to be a particeps criminis, with another person, at a cer- tain place, where, if certain evidence introduced by the defendant to estab- lish an (tlihi was true, neither R. nor tlie defendant could have been at the time of the murder. For the purpose of fixing the date, another witness was allowed to testify that the first witness told him on tlie following morning that he saw R. and another person the night before. Held, that the evidence w;)s inadmissible. Brown v. People, 17 Mich. 429 (1868). 532 HOMICIDE. [chap. XXII, the prisoner.^ It is thought, however, that where hearsay evidence has been admitted, but afterwards excluded in the charge of the judge, that the error will be cured.''^ Sec. 487. Impeaching- evidence. — ^ The rules governing the impeachment of witnesses, and the admission of evi- dence for that purpose, are the same in cases of homicide as in other prosecutions. A witness may be impeached by proof of former acts or statements by him, contrary to his evidence ; ^ or his credibility may be affected by proof of complicity in the homicide, or the acts leading to it;* 1 State V. Terrell, ]^ Rich. (S. C.) L. 321 (1859). ■^ See People r. Bealoba, 17 Cal. 389 (1861). 3 See People v. Williams, 18 Cal. 187 (1861); State r. Baldwin, 36 Kan. 1 (1886); s.c. 9 Cr. L. Mag. 49; 12 Pac. Rep. 318, affirniing s.c. 7 Cr. L. Mag. 512 ; State u. Walker, 98 Mo. 95 (1888); s.c. 9 S. W. Rep. 646; State V. Talbott, 73 Mo. -347 (1881). Wliere the defendant produced a witness who, with a view of showing the conscious innocence of the defend- ant, testified what his conduct and appearance was soon after the death of his sister, it was proper to inquire, on cross-examination, if the witness had not stated at the preliminary ex- amination that the conduct of the defendant impressed liim at once as being guilty of murder. State i'. Bald- win, 36 Kan. 1 (1886) ; s.c. 12 Pac. Rep. 318, affirming s.c. 7 Cr. L. Mag. 612. Where, with a view of impeaching a witness, he is asked if he did not make a certain statement on a previ- ous examination, and he replies that " it amounts to about the same thing," he thereby practically admits the making of the statement, and his answer is sufficient as a foundation for impeachment. State v. Baldwin, 36 Kan. I (1886) ; s.c. 12 Pac. Rep. 318, affirming s.c. 7 Cr. L. Mag. 512. In a trial of defendant for murder, a participator in the crime furnished the only direct evidence ; he gave a full account of the affair, but in his account conveyed the idea that he was a reluctant and unwilling abettor, exonerating himself from any crimi- nality beyond going with defendant for the purpose of chastising the de- ceased. On cross-examination, defend- ant's counsel asked witness if he did not, a few days before the murder, state that he intended to kill the deceased. The theory of the defence was, that the witness himself did the murder. Held, that tiiis question was admis- sible, as tending to contradict, inferen- tially, witness's statements and prove them false. People v. Williams, 18 Cal. 187 (1861). A son was tried for murdering his father. The state introduced evidence tending to show unfriendly relations between father and son. The father's widow testified that, on the contrary, their relations were friendly. Held, that the state might show in rebult.nl that the widow, before her husband's death, in speaking of a difficulty be- tween father and son, had said that if the son had had a pistol be would have shot his father, and that he was prepared for him. State v. Talbott, 73 Mo. .347 (1881). ■> See Craft v. State, 3 Kan. 450 (1866) ; Tow v. State, 22 Tex. App. 175 (1887) ; s.c. 2 S. W. Rep. 582; Dubose i: State, 10 Tex. App. 230 (1881). A state's witness may be shown to have directed deceased to shoot de- SEC. 488.] EVIDENCE COMPETENCE. 533 or of an especial interest in tlie prosecution of the defend- ant.^ It has been hekl that dying declarations may be impeached by evidence of statements by the deceased contradictory thereto ; ^ but the supreme court of Ohio say in the case of Wroe V. State,^ that where dying declarations are proved in a case, a statement of the deceased made at another time, which is neither a dying declaration nor a part of the res gestce, is not admissible to impeach such declarations. Sec. 488. Things in evidence. — Upon the trial of an in- dictment for homicide it is proper to introduce in evidence any and every thing which is sliown to be of the res (jestce, or to be properly connected with the homicide, that may aid in explaining or determining any disputed question connected with the charge upon which the defendant is being tried. Thus, it is competent to introduce photographs of the deceased, taken during his lifetime, in order to aid in his identification, if that is in question ; * or a photograph of the wound.^ Diagrams of the premises where the homicide is shown to have occurred are also admissible, after the proper foundation has been laid by showing their accuracy and the skill of the draughtsman,^ or such diagrams or plans may be referred to by witnesses in order to render their testimony more easily intelligible.'^ It is also proper for the jury to see and investi- fendant. Tow r. State, 22 Tex. App. 368 (1803) ; McPlierson v. State, 9 175 (1887) ; s.o. 2 S. W. Rep. 582. Yerg. (Tenn.) 279 (1836) ; Felder v. Upon a trial for murder, in which State, 23 Tex. App. 477 (1887) ; s.c. the issue was the identification of tlie 59 Am. Rep. 777; 5 S. W. Rep. 145. defendant as tiie murderer, tlie state ^ 20 Ohio St. 460, 472 (1870). introduced the testimony of a witness * Marion v. State, 20 Neb. 235 against whom there was some proof (1886); s.c. 57 Am. Rep. 825; 29 of complicit}'. Defendant offered to N. W. Rep. 911. See Walsh v. Peo- prove that the witness was at enmity pie, 88 N. Y. 458 (1882); Ruloff v. with the deceased, had threatened his People, 45 N. Y. 213 (1871) ; Udder- life, and carried weapons with which zook r. Commonwealth, 76 Pa. St. 340 to take it. Defendant's offer to prove (1874) ; s.f. 1 Am. Or. Rep. 311. was rejected. Held, error, because ^ Franklin v. State, 69 Ga. 36 such proof proximatel}' tended to (1882) ; s.c. 47 Am. Rep. 748. exculpate the defendant. Dubose v. ^ Territory r. F.gan, 3 Dak. 119 State, 10 Tex. App. 230 (1881). (1882) ; Smith v. State, 21 Tex. App. ' SeeBeauchampi'. State.OBlackf. 107 (1887). (Ind.) 300 (1842). ' State v. Lawlor, 28 Minn. 216 2 Moore v. State, 12 Ala. 704 (1881) ; s.c. 9 N. W. Rep. 698. (1848) ; People v. Lawrence, 21 Cal. 534 HOMICIDE. [chap. XXII. gate the clothing of the deceased, and its condition, as shed- ding light upon the manner and means of death,i and so of the clothing of defendant shown to have been worn by him at or about the time of the alleged commission of the homi- cide,^ and their production in evidence is not a violation of the constitutional provision that no person shall be compelled to give testimony criminating himself.^ The weapon with which it is charged the homicide was committed is also competent evidence ; ^ and so is property shown to belong to the defendant found at or near the place of the homicide, under such circumstances as show an apparent connection between the property and the killing. Thus vari- ous articles, such as burglar's tools and part of a newspaper, found in a room occupied by the accused before tlie murder, and at the scene of the crime, and the possession of which was connected with the prisoner or his accomplices, and shoes found at the place Avhere the murder was committed, fitting the prisoner, are admissible as evidence connecting him with the murder.^ Sec. 489. View of premises by jury. — At common law a vicAv by the jury of the premises could not be had except upon the consent of the parties,^ but statutes have been passed in most of the states permitting such views. Under these statutes, granting a view rests largely within the dis- cretion of the trial judge." The purpose of such a view is to aid the jury in weighing conflicting testimony, and what they see does not itself become a part of the evidence.^ 1 Story r. State, 99 Ind. 413 (1884); Mluloff v. People, 45 N. Y. 21.'i Hart V. State, 15 Tex. App. 202 (1883) ; (1871) ; s.r. .s((/. nom. Kuloff's Case, 1 1 s.c. 49 Am. Rep. 188; King v. State, Abb. (N. Y.) Pr. N. S. 245 (1871). 13 Tex. App. 277 (1883). e gee 1 Thompson on Trials, § 885 2 Drake v. State, 75 Ga. 413 (1885) ; et sp(j. ; 10 Cent. L. J. 436. State V. Stair, 87 Mo. 208 (1885) ; s.c. " See People v. Bush, 68 Cal. 623 56 Am. Rep. 449. (1886); s.c. 7 Cr. L. Mag. 735; 10 The fact that such garments can- Pac. Rep. 169; Bostock v. State, 61 not be filed with the bill of exceptions Ga. 035 (1878); State w. Moran, 15 is no reason for excluding them. Orcg. 262 (1887) ; State v. Ah Lee, States. Stair, 87 Mo. 268 (1885); s.c. 8 Greg. 214 (1880); Sasse v. State, 56 Am. Rep. 449. 68 Wis. 530 (1887) ; s.c. 32 N. W. 3 Drake v. State, 75 Ga. 413 (1885). Rep. 849. * Thomas v. State, 67 Ga. 460 « Chute v. State, 19 Minn. 271 (1881) ; Commonwealth v. Sturtivant, (1872) ; Sasse v. State, 68 Wis. 530 117 Mass. 122 (1875); s.c. 19 Am. (1887); s.c. 32 N. W. Rep. 849. Rep. 401. SEC. 491.] EVroENCE COMPETENCE. 535 The current of authority is to the effect that the prisoner must be present on such a view, because were it had in his absence this would be a violation of the prisoner's constitu- tional right and privilege to be confronted with the witnesses against him.i Some of the cases go to the extent of holding that the constitutional right to be present is one which the prisoner cannot waive in a murder trial,^ but this position is variously combated by Judge Brewer in the case of State v. Adams,=^ and it is held by the Supreme Court of Oregon, that the defendant waives his right to be present by failure to make application to the court for leave to accompany the jury.* Sec. 490. Presumptions and burden of proof — As to the corpus delicti. — The burden of proof is on the prosecu- tion to establish the corpus delicti as well as all other mate- rial alleofations in the indictment, to the satisfaction of the jury, before a conviction for a homicide can be justified ; ^ but it has been held that where the prosecution shows j)rima facie the corpus delicti, the defendant has the burden to show that the person for whose killing he is upon trial is still alive, if he sets up that claim.^ Sec. 491. Same — As to malice.' — Where the proof shows an unlawful killing, by means calculated to produce death, and no circumstances in mitigation appear, malice is presumed, and the defendant has the burden of proof to show that the killing was not malicious ; but where mitigating cir- cumstances are shown by the evidence of the prosecution, they rebut the presumption equally as if shown by the de- fendant.s Where the courts hold that malpractice of a sur- 1 Benton v. State, 30 Ark. 328, 348 ^ See State v. Taylor, 1 Houst. Cr. (1875); People v. Bush, 71 Cal. 602 Cas. (Del.) 43(5 (1874). (1887); s.c. 7 Cr. L. Mag. 735; 10 e pahnestock v. State, 23 Lul. 231 Pac. Rep. 109, overruling People i-. (1804); State r. Vincent, 24 Iowa, 570 Bonney, 19 Cal. 420 (1861) ; State v. (1808). Bertin', 24 La. An. 40 (1872) ; Carroll " As to legal presumptions of V. State, 5 Neb. 32, 35 (1876). malice, see supra Cliap. V. 2 See People v. Bush, 71 Cal. 002 '^ McDaniel v. State, 76 Ala. 1 (1887) ; s.c. 7 Cr. L. Mag. 735. (1884); Wharton v. State, 73 Ala. 3 20 Kan. 311, 324 (1878). 366 (1882) ; People v. Bush, 71 Cal. * State V. Moran, 15 Oreg. 262 602 (1887) ; s.c. 12 Pac. Rep. 781 ; (1887); s.c. 14 Pac. Rep. 419; State People v. Raten, 63 Cal. 421 (1883); V. Ah Lee, 8 Oreg. 214 (1880). People v. Hong Ah Duck, 61 Cal. 387 536 HOMICIDE. [chap. XXII. geon or physician may be a defence to an indictment for murder partly caused by a wound inflicted with malicious intent, the defendant has the burden to show that the death resulted from the neglect or malpractice of the surgeon or physician, or from some other cause than the wound.^ in Wharton v. State,^ on trial of the defendant for killing his wife, it appeared that eighteen months before the killing, he had said he did not like her, and would not live with her, and had separated from her, but at the time of the killing they had resumed their marital relations, the court held that there was no presumption of want of malice from this recon- ciliation. It is frequently the case that persons upon trial for liomi- cide are sought to be charged with the burden of proof in the first instance, but such a doctrine has no precedent nor (1882) ; rcople v. West, 49 Cal. 010 (1875) ; People v. Ah Kong, 41) Cal. 7 (1874) ; People r. Gibson, 17 Cal. 283 (1861) ; People r. Arnold, 15 Cal. 470 (1800) ; State r. West, 1 Iloust. Cr. Cas. (Del.) :]71 (1873) ; Dixon v. State, 13 Fla. 030 (1870) ; Gladden v. State, 13 Fla. 023 (1870) ; Reid v. State, 50 Ga. 550 (1874) ; Mnrpliy v. People, 37 111. 447 (1805) ; State v. Vincent, 24 Iowa, 570 (1808) ; 8.c. 95 Am. Dec. 753 ; State v. Gilliok, 7 Iowa, 287 (1858) ; Tweedy v. State, 5 Iowa, 433 (1857); State ?\ Briscoe, 30 La. An., pt. I, 433 (1878) ; State v. Knight, 43 Me. 11 (1857) ; Commonwealth v. Wehster,m Mass. (5 Cush.) 290 (1850); s.c. 52 Am. Dec. 711 ; Barciis v. State, 49 Miss. 17 (1873) ; s.c. 19 Am. Rep. 1 ; 1 Am. Cr. Rep. 240; Green c. State, 28 Miss. 087 (1855) ; State r. Alex- ander, GO Mo. 148 (1877) ; Territory V. McAndrews, 3 Mont. Tr. 158 (1878); People V. McCarthy, 110 N. Y. 309 (1888) ; s.c. 18 N. E. Rep. 128 ; Peoi^le V. ScJiri/ver, 42 N. Y. 1 (1870) ; s.c. 1 Am. Rep. 480; Patterson c People, 40 Barb. (N. Y.) 025 (1800) ; State r. Byers, 100 N. C. 512 (1888) ; s.c. S. E. Rep. 420; State r. Jones, 98 N. C. 051 (1887); s.c. 3 S. E. Rep. 507; sS'tate v. Thomas, 98 X. C. .599 (1887) ; s.c. 10 Cr. L. Mag. 413 ; 2 Am. St. Rep. 351 ; State v. vSmith, 77 N. C. 488 (1877) ; State v. Willis, 03 N. C. 20 (1808) ; State v. Johnson, 3 Jones (N. C.) L. 200 (1855) ; Commonwealth V. Drum, 58 Pa. St. 9 (1808) ; Perry i: State, 44 Tex. 473 (1870) ; Murray v. State, 1 Tex. App. 417 (1877) ; Hill v. Commonwealth, 2 Gratt. (Va.) 594 (1845). See Brown ;.•. State, 74 Ala. 478 (1883) ; McGinnis v. State, 31 Ga. 230 (1800) ; State v. Dillon, 74 Iowa, 053 (1888); s.c. 38 N. W. Rep. 525; Hawtliorne i-. State, 58 Miss. 778 (1881); Hogan v. State, 30 Wis. 220 (1874); Richardson v. State, 9 Tex. App. 012 (1881) ; United States v. Mingo, 2 Curt. C. C. 1 (1854). Com- pare Commonwealth r. Hawkins, 09 Mass. (3 Gray) 403 (1855) ; People v. Coughlin, 05 Mich. 704 (1887); s.c. 32 N. W. Rep. 905; Maher v. People, 10 Mich. 212 (1802) ; Beers v. State, 24 Neb. 014 (1888) ; s.c. 39 N. W. Rep. 790; Goodall r. State, 1 Oreg. 333 (1801) ; s.c. 80 Am. Dec. 390. " Heat and passion " is a fact to be proved, like any other, and is not to be presumed from good character, in the absence of direct evidence. Hogan V. State, 30 Wis. 220 (1874). 1 State ?'. Briscoe, 30 La. An., pt. I, 433 (1878). ■^ 73 Ala. 300 (1882). SEC. 492.] EVIDENCE COMPETENCE. 537 fouiulation in authority ; it should always be eleaii}' under- stood that the prosecution has the burden of proof upon the whole case taken together, and only when it has proved facts relating to a specific element of the crime charged, which raise a jyrijnafacie presumption of malice aforethought, is the burden cast upon defendant in any respect. The defendant's burden of proof can only be in rebuttal of something shown by the prosecution.^ The supreme court of Michigan say, in jNIaher v. People,^ that, under a charge of murder, the presumption of the defend- ant's innocence applies equally to the malicious intent neces- sary to be shown, and to the killing ; and the onus proba7id{, as to each, is with the prosecutor. An instruction in such a case that the law implies malice in case of unlawful killing by means calculated to produce death, and the burden of proof is on the defendant, if he would reduce the offence to a lower grade than murder in the second degree, is erroneous. The law never casts the burden of proof on the accused in such a sense as to relieve the state from proving the facts constituting any degree of crime.^ Sec. 492. Same — As to insanity. — Every person charged with the commission of a homicide is always presumed to be sane and of sound mind until the contrary is shown ; and while some courts are inclined to regard the question as yet unsettled, or have decided according to the opposite vicAv,* 1 Brown v. State, 74 Ala. 478 (188:]); (1850) ; Cliase v. People, 40 111. 352 Maherr. People, 10 Mich. 212 (18(32); (1800); Hopps v. Piopic, 31 111. 385 Perry v. State, 44 Tex. 473 (1870). (1803); .s.c. 83 Am. Deo. 231; 2 Cr. 2 10 Micii. 212 (1802). Def. 444; Guetig v. State, 00 Ind. !)4 sPerryr. State, 44 Tex. 473 (1870); (1879); s.c. 32 Am. Rep. 90; 2 Cr. Murray v. State, 1 Tex. App. 417 Def. 455; State v. Crawford, 11 Kan. (1877). 32 (1873) ; s.c. 2 Cr. Def. 459; People A charge that to make out a case v. Garhult, 17 Mlcii. 9 (1808) ; s.c. 97 of justifiable self-defence, the evi- Am. Dec. 102; 2 Cr. Def. 403; Cmi- dence must show the difficulty was not vinrjham v. State, 50 Miss. 209 (1879) ; j)rovoked or encouraged by the de- s.c. 31 Am. Rep. 300; 2 Cr. Def. fendant,' is erroneous in misplacing the 470; Wright v. People, 4 Neb. 407 burden of proof, sucli provocation or (1870); s.c. 2 Cr. Def. 477; State v. encouragement not being presumed, Jones, 50 N. H. 309 (1871) ; s.c. 9 and disproof not being required, except Am. Rep. 242; 17 N. W. Rep. 911; in rebuttal of the evidence thereof in- 2 Cr. Def. 04; 1 Gr. Cr. Rep. 378, troduced by the state. Brown r. State, note; State v. Bartlett, 43 N. H. 74 Ala. 478 (1883). 224 (1801) ; s.c. 80 Am. Dec. 154; 2 * See Ogletree v. State, 28 Ala. 701 Cr. Def. 480; O'Connell r. People, 87 538 HOMICIDE. [chap. XXII. the clear weight of authority is to the effect that when in- sanity is set up by the defendant as a confession and avoid- ance, he has the burden to prove it.^ But there are excep- tions to this rule, as, for instance, where the defendant is a deaf-mute, the prosecution then having the burden to prove his sanity or soundness of mind.^ N. Y. 377 (1882) ; s.c. 41 Am. Rep. :]70; 2 Cr. Def. 499; People v. Mc- Cann, 10 N. Y. 58 (1857) ; s.c. (39 Am. Dec. 042; 2 Cr. Def. 490; Dove r. State, 3 Heisk. (Tenn.) 348 (1872) ; s.c. 2 Cr. Def. 502 ; 1 Gr. Cr. Rep. 700. 1 Boswell V. State, 63 Ala. 307 (1879) ; s.c. 35 Am. Rep. 20; 2 Cr. Def. 352; 2 Cr. L. Mag. 32; State v. Brinyea, 5 Ala. 244 (1843) ; s.c. 2 Cr. Def. 349; State v. Marler, 2 Ala. 43 (1841) ; s.c. 2 Cr. Def. 340; 30 Am. Dec. 398; Casat v. State, 40 Ark. 511 (1883) ; McKenzie v. State, 20 Ark. 334 (1870) ; s.c. Law. Insan. 533; People V. McDonell, 47 Cal. 134 (1873); s.c. 2 Gr. Cr. Rep. 441 ; People v. Myers, 20 Cal. 518 (1862) ; State v. Hoyt, 40 Conn. 330 (1878); State v. Pratt, 1 Houst. Cr. Cas. (Del.) 249 (1807) ; s.c. 2 Cr. Def. 327; State v. Danby, 1 Houst. Cr. Cas. (Del.) 1G7 (1864) ; s.c. 2 Cr. Def. 331; State v. Hurley, 1 Houst. Cr. Cas. (Del.) 28 (1858) ; McDougal v. State, 88 Ind. 24 (1882); s.c. 4 Cr. L. Mag. 509; State V. Felter, 32 Iowa, 49 (1871) ; s.c. 2 Cr. Def. 371 ; Kriel v. Conmion- wealth, 5 Bush (Ky.) 362 (1869); s.c. 2 Cr. Def. 379; Smith v. Com- monwealth, 1 Duv. (Ky.) 224 (1804); s.c. Law. Insan. 669 ; Graham v. Com- monwealth, 16 B. Mon. (Ky.) 587 (1855); s.c. 2 Cr. Def. 373; State v. Lawrence, 57 Me. 574 (1870) ; s.c. 2 Cr. Def. 38()-; Commonwealth v. Eddy, 73 Mass. (7 Gray) 583 (1850) ; Com- monineah}i v. liogers, 48 Mass. (7 Mete.) 500 (1844); s!c. 41 Am. Dec. 458; Law. Insan. 158; People v. Finley, .38 Mich. 482 (1878) ; State v. Redemeier, 71 Mo. 173 (1879) ; s.c. .36 Am. Rep. 402; 1 Cr. L. Mag. 456; 8 Mo. App. 1 ; 2 Cr. Def. 424 ; State v. Smith, 53 Mo. 207 (1873); State v. Hundley, 46 Mo. 414 (1870) ; s.c. 2 Cr. Def. 417 ; State v. Klinger, 43 Mo. 127 (1868); s.c. 2 Cr. Def. 410; State V. McCoji, 34 Mo. 531 (1804); s.c. 86 Am. Dec. 121; 2 Cr. Def. 408; Baldwin v. State, 12 Mo. 223 (1848) ; s.c. 2 Cr. Def. 395 ; Graves v. State, 45 N. J. L. (16 Vr.) 347 (1883) ; s.c. 5 Cr. L. Mag. 815; 46 Am. Rep. 778 ; 4 Am. Cr. Rep. 386 ; State v. Spencer, 21 N. J. L. (1 Zab.) 202 (1840) ; s.c. 2 Cr. Def. 335; State v. Martin, 3 Cr. L. Mag. (N. J.) 44 (1881) ; State v. Bran- don, 8 Jones (N. C.) L. 403 (1862); s.c. Law. Insan. 144 ; State v. Starling, 6 Jones (N.C.) L. 360 (1859); Loeffneri'. State, 10 Ohio St. 599 (1857); s.c. Law. Insan. 432 ; Coyle v. Commonwealth, 100 Pa. St. 573 (1882) ; s.c. 4 Cr. L. Mag. 76; 45 Am. Rep. 397; 2 Cr. Def. 441 ; Ortwein v. Commonwealth, 76 Pa. St. 414 (1874) ; s.c. 18 Am. Rep. 420 ; 1 Am. Cr. Rep. 297 ; Law. Insan. 438; Commonwealth v. Lynch, 3 Pittsb. (Pa.) 412 (1872); State v. Coleman, 20 S. C. 441 (1883) ; State V. Stark, 1 Strobh. (S. C.) L. 479 (1847) ; Rather v. State, 25 Tex. App. 623 (1888); s.c. 9 S. W. Rep. 70; Boswell V. Commonwealth, 20 Gratt. (Va.) 860 (1871) ; s.c. Law. Insan. 592; United States i'. Lawrence, 4 Cr. C. C. 514 (1835); United States i;. McGlue, 1 Curt. C. C. 1 (1851); Attorney-General v. Parnther, 3 Bro. Ch. 441 (1792); Reg. v. Stokes, .3 Car. & K. 189 (1848); McNaghten's Case, 10 CI. & F. 200 (1843); Reg. v. Lay ton, 4 Cox C. C. 149 (1849). 2 State V. Draper, 1 Houst. Cr. Cas. (Del.) 291 (1808). CHAPTER XXIII. EVIDENCE — WEIGHT AND SUFFICIENCY. Sec. 49o. The corpus i/ellcli. Sec. 494. Same — New York rule. Sec. 495. Same — 'Proving alias dictus. Sec. 496. Proviiific tlie venue. Sec. 497. Same- — ^ Doctrine of reasonable doubt. Sec. 498. Confessions. Sec. 499. Same — Nature and effect. Sec. 500. Same — Must be free and voluntary. Sec. 501. Same — Inducement to conf(5ssion — Person in authority. Sec." 502. Same — Confessions made while under arrest. Sec. 503. Same — Confessions made through fear of mob violence. Sec. 504. Same — Confessions procured by artifice and deception. Sec. 505. Same — Confessions to clerg^ymen. Sec. 506. Same — Confessions obtained by questioning. Sec. 507. Same — Confessions during examination. Sec. 508. Same — Confessions inferred when. Sec. 509. Same — The whole confession must be taken together. Sec. 510. Testimony of accomplice. Sec. 511. Proving self-defence. Sec. 512. Proving alibi. Sec. 513. Proving insanity. Sec. 514. Same — Sufficiency of evidence. Sec. 493. The corpus delicti. — The corpus delicti con- sists of two fundamental facts : first, the death, and second, the existence of the criminal agency as the cause thereof. The former must be shown, either by direct proof,^ or by presumptive evidence of the strongest kind, which is clearly satisfactory to the jury, and convinces them beyond a reason- 1 McCulloch V. State, 48 Ind. 109 Rep. 53; 27 N. Y. Week. Dig. 169; (1874); s.c. 1 Am. Cr. Kep. 318; People r. Bennett, 49 N. Y. 137 (1872); People V. Deacons, 109 N. Y. 374 Euloff v. People, 18 N. Y. 179 (1878); (1888); s.c. 10 N. E. Kep. 676 ; People Walker v. State, 14 Tex. App. 609 V. Palmer, 109 N. Y. 110 (1888) ; s.c, (1884^ ; Smith v. Commonwealth, 21 16 N. E. Rep. 529: People v. Beck- Gratt. (Va.) 809 (1871). with, 108 N. Y. 67 (1888); s.c. 15 N. E. 539 540 HOMICIDE. [cHAr. xxrir. able doubt.i But the criminal agency may be established by circumstantial evidence, or by presumptive reasoning upon the facts and circumstances of the case.^ The general rule, however, is that the corpus delicti^ taken as a whole, may be shown by any evidence which satisfies the jury beyond a reasonable doubt, whether it be direct or circumstantial ; ^ but this is qualified and limited by the rule tliat the defend- ant's confession taken alone and without corroborating proof of the corpus delicti is not sufiicient to support a conviction.^ This general proof, however, need not necessarily be direct. Thus proof that the deceased was unlawfully killed, is suf- ficient corroboration of the confession of the defendant, that he was present, aiding and abetting, to authorize his convic- tion.* In Paul V. State ^ on the trial of a youth for the murder of a girl nine years old, proof that he confessed that he switched her near a spring for having told a lie on him ; that she ran and cursed him, and that he got a rail and knocked her on the head, and she died, was confirmed by evidence that she was found near the spring with her skull fractured, and near it certain frizzled switches and a broken lail with blood thereon, and the verdict of guilty should not be dis- turbed by the appellate court. I 1 Pitts V. State, 43 Miss. 472 (1870). 2 People V. Alviso, 55 Cal. 280 (1880) ; Anderson v. State, 20 Fla. 381 (1883) ; State v. Keeler, 28 Iowa, 551 (1870) ; Johnson v. Commonwealth, 81 Ivy. 325 (1888) ; s.c. 4 Cr. L. Mag. {•02 ; State v. Williams, 7 Jones (N. C.) L. 446 (1860) ; s.c. 78 Am. Dec. 248 ; Timnierman v. Territon', 3 Wash. Tr. 445 (1888) ; s.c. 17 Pae. Rep. 625 ; Taylor v. State, 35 Tex. 97 (1871) ; United States v. Williams, 1 Cliff. C. C. 5 (1858). See Cavaness V. State, 48 Ark. 881 (1884) ; MrCnl- loch V. State, 48 Ind. 109 (1874) ; s.c. 1 Am. Cr. Rep. 318 ; Stocking v. State, 7 Ind. 326 (1855) ; Pitts v. State, 43 Miss. 472 (1870) ; Liglitfoot r. State, 20 Tex. App. 77 (1886) ; Love- lady r. State, 17 Tex. App. 28(5 (1885) ; s.c. 14 Tex. App. 545 (1884) ; Robin- son V. State, 16 Tex. App. 847 (1885) ; Spear v. State, 16 Tex. App. 98 (1885) ; Walker v. State, 14 Tex. App. 609 (1884) ; Smith v. Commonwealth, 21 Gratt. (Va.) 809 (1871). Compare People V. Palmer, 109 N. Y. 110 (1888); s.c. 16 N. E. Rep. 529; Peo- ple i^. Beckwith, 108 N. Y. 67 (1888) ; 15 N. E. Rep. 53 ; People v. Bennett, 49 N. Y. 137 (1872) ; Ruloff v. People, 18 N. Y. 179 (1878). 3 Paul V. State, 65 Ga. 152 (1880) ; Daniel v. State, 63 Ga. 339 (1879) ; Holsenbake v. State, 45 Ga. 43 (1872) ; South v. People, 98 111. 261 (1881; ; People v. Lane, 49 Mich. 340 (1882) ; s.c. 13 N. W. Rep. 622 ; State V. Patterson, 73 Mo. 695 (1881) ; Peo- ple V. Deacons, 109 N. Y. 874 (1888) ; s.c. 16 N. E. Rep. 676 ; Smith v. Com- monwealth, 21 Gratt. (Va.) 809 (1871); United States v. Williams, 1 Cliff. C. C. 5 (1858). * Daniel v. State, 63 Ga. 339 (1879). ^ 65 Ga. 152 (1880). SEC. 494.] WEIGHT AND SUFFICIENCY. 54:1 In ^IcCulloch V. State ^ on a trial for murder, evidence was efiven of the finding of the skeleton of a human beinw of the sex of the person charged to have been murdered, and corresponding to his size, and this was held sufficient evidence of the corpus delicti to justify the admission of circumstantial evidence to identify the skeleton as that of the murdered party, as well as to sliow the cause and manner of the death. But where it was not proved that A was dead, oidy that he had disappeared, and a body was found in a river more than six hundred miles below the spot where the prosecution claimed that A was killed, but the body was not identified as A's, the court held that, notwithstanding the existence of circumstantial evidence of the defendant's guilt, the verdict should be set aside.^ Sec. 494. Same — New York r.ule. — It seems that the provisions of the New York Penal Code,^ prohibiting a con- viction " unless the death of the person alleged to have been killed, and the fact of the killing by the defendants as alleged are each established as independent facts, the former by direct proof, and the latter beyond a reasonable doubt," does not exclude evidence of points and features of resemblance between the mutilated body and tlie person charged to have been killed, nor does it exclude proof of circumstances tend- ing to establish identity.* And under this section it seems that the accused may be convicted of murder without direct proof of the identity of the victim.'' Under the New York Code of Criminal Procedure,*^ providing that the confession of a defendant sliall not bs sufficient without additional proof that the crime charged has been committed, the finding of the dead body of a murdered man, with the unmistakable marks of a murder committed, is sufficient additional proof to warrant the conviction of a defendant on his own confes- sion." 1 48 Ind. 109 (1874) ; s.c. 1 Am. (1888) ; s.c. 15 N. E. Rep. 53 ; 27 Cr. Rep. 318. N. Y. Week. Dig. 109. 2 Walker v. State, 14 Tex. App. ° People v. Palmer, 109 N. Y. 110 609 (1884). (1888) ; s.c. 10 N. E. Rep. 529. 3 N. Y. Pen. Code, § 181, as « n. Y. Code Cr. Proc. § 395. amended, 1882. " People ?•. Deacons, 109 N. Y. 374 •t People V. Beckwith, 108 N. Y. 07 (1888) ; s.c. 10 N. E. Rep. 070. 542 HOMICIDE. [chap. XXIII. Sec. 495. Same — Proving alias dictus. — Where two or more names are laid in an indictment under an alias dictus, it is not necessary to prove them all. Thus where the prisoner, an Indian, was indicted for the murder of Agnes Jacobs, otherwise called Konwaker Karonhienaw^ita, and at the trial evidence was given identifying the deceased as an Indian woman, known by the name laid in the indictment, but there was no evidence that she was known by the name of Agnes Jacobs, it was held, affirming the judgment of the Court of Crown Cases Reserved for the Province of Quebec, that proof of the Indian name was sufficient to justify a con- viction of the prisoner of manslaughter.^ Sec. 496. Proving' the venue. — It is sufficient if the venue be proved in any manner which satisfies the jury that the homicide was committed within the jurisdiction of the court. It has been held that it need not be proved affirma- tively ; but that if the witnesses describe the place sufficiently for the jury to reasonably infer that it was within the proper locality, it is sufficient.^ It may- be established by either circumstantial evidence,^ or by the testimony of one witness, when not positively contradicted,* or by the dying declara- tions of the deceased.^ Where the evidence shows that the defendant, in company with the deceased, on the evening of the alleged murder, left one county, going towards an adjoining county, in wliich the body of the deceased was found, the venue of the killing w^as ^ Queen v. Jacobs (Can. S. C.) 25 N. W. Rep. 911. Compare Franklin Can. L. J. 801) (1880) ; distinguishing v. State, 5 Baxt. (Tenn!) Olo (1875). Reg. V. Frost (Dears. C. B. 474) 25 •♦ Speight v. State, 80 Ga. 512 Can. L. J. 310 (1889). (1888) ; s.c. 5 S. E. Rep. 500. See 2 See Andrews v. State, 21 Fla. 598 Laydon v. State, 52 Ind. 459 (187(5). (1885) ; State v. Dent, 1 Ricli (S. C.) On the trial of an indictment for niur- L. 4(59 (1845). Compavp Franklin v. der, in the Fountain circuit court. State, 5 Baxt. (Tenn.) ()i:J (1875). a witness for tiie state, who testified to ^ State V. We.s/, 69 Mo. 401 (1879); the whole transaction, having been s.c. 33 Am. Rep. 50(5. See People r. present and having seen it all, con- Williams, 18 Cal. 187 (18(51); Dumas eluded his evidence by saying, " Tn V. State, 02 Ga. 58 (1878) ; Mitchum Fountain county, Indiana." The ap- V. State, 11 Ga. 615 (1852) ; Beavers j)ellate court lield that the place of V. State, 58 Ind. 530 (1877) ; Com- the killing was proved. Laydon v. monwealth v. Costlcy, 118 Mass. 1 State, 52 Ind. 459 (1876). (1875) ; Marion v. State, 20 Neb. 233 ^ Bryant v. State, 80 Ga. 273 (1887); (188(3); s.c. 57 Am. Rep. 825; 29 s.c. 4 S. E. Rep. 853. SEC. 498.] WEIGHT AND SUFFICIENCY. 543 sufficiently shown to have been in the hitter.^ And proof that the mortal wound was given after the deceased had left one point late in the afternoon, and arrived at another in the same county, eight miles distant, early in the night, fixes the venue with sufficient certainty .^ Proof that a body, with marks of injuries sufficient to cause death, was found in a river in the heart of a county, in a con- dition showing that he must have been thrown there by the hand of a man, and not drifted there by the current of the stream, is sufficient to warrant a finding that the homicide was committed in that count3^^ And in a case where the only proof offered that the homicide was committed in the county laid, was the statement of the coroner who held the inquest, that the body was found in such county, it would seem that the venue is sufficiently proven.* Sec. 497. Same — Doctrine of reasonable doubt. — The doctrine of reasonable doubt does not apply to proof of venue. If the evidence raises a violent presumption that the offence was committed in the county, or if the jury are reasonably satisfied that such is the case, it is sufficient.^ Sec, 498. Confessions. — Where the corpus delicti has established bv other or additional evidence, the confessions of 1 Beavers i\ State, 58 Ind. MO (1877). 2 Dumas v. State, 62 Ga. 58 (1878). On an indictment for murder be- fore the superior court in tlie county of Stewart, the proof was that the crime was committed in the house of the witness at Florence, Stewart county ; and it was lield that the proof was sufficient tliat the crime was com- mitted within the jurisdiction of the court. Mitchum v. State, 11 Ga. 615 (1852). ^ Commonwealth v. Costley, 118 Mass. 1 (1875). ^ People V. Williams, 18 Cal. 187 (1861). In Marion v. State, 20 Neb. 23.3 (1886); s.c. 57 Am. Rep. 825; 29 N. W. Rep. Oil, at tlie trial of an in- dictment for murder, an instruction, requested by the defendant, that, in order to convict, it was not sufficient for the state to prove that the body of the deceased was found in the county mentioned in tlie indictment as the place of the killing, but it must be proved beyond a reasonable doubt that the deceased was unlawfully killed by the defendant in such county, was given, with the following addition by the court: "but the place where the remains were found, if found at all, may be taken into con- sideration, together with all the other evidence, in fixing the locality of the homicide, if there was a homicide." The appellate court held that such ad- dition was properly made ; and that it was entirely competent for the jury to take into consideration all the cir- cumstances proven as to the discovery of the body, both as to the time and place of the alleged killing. 5 Andrews i-. State, 21 Fla. 598 (1885). 54-i HOMICIDE. [chap. XXIII. the prisoner, if made freely or voluntarily, and not induced by fear or compulsion or promise of favor, may l)e alone sufficient to sustain a conviction for the homicide, when satisfactorily proved.^ The ground on which such confessions are received, is the presumption that a person will not make an untrue statement against his own interest.^ Regarding the value of or credit to be given to voluntary con- fessions, much difference of opinion exists. Some of the cases consider it as forming the highest and most satisfactory evidence of guilt r*^ while others hold that hasty confessions made to persons having no authority to examine, are the 1 Mose V. State, 36 Ala. 211 (1860) ; Ruberts v. Commonvvoaltli, 7 S. W. Rep. (Ky.) 401 (1888); State v. Walker, Mont. 242 (188G) ; s.c. 11 Pac. Rep. Disc. 24;j. (iTO. - Brister v. State, 2G Ala. 107 « Marsli i'. Mitchell, 20 N. J. Eq. (1855); 1 Greenl. Ev. (14th ed.) § (11 C. E. Or.) 497 (1875); Roscoe's 214; Wliart. Cr. Ev. (9th ed.) § (W4. Cr. Ev. (10th ed.) 40. See Kerr's "Before and at trial," " See Winslow r. State, 70 Ala. 42 p. 283 et seq. for instances of this (1884) ; Johnson r. State, 59 Ala. 37 kind. (1877) ; Matthews v. State, 55 Ala. 3 Jones V. State, 13 Tex. 108 (1854); 187 (1870) ; Sampson v. State, 54 Ala. s.c. 02 Am. Dec. 550. 241 (1875) ; Mose v. State, 30 Ala. * See State I'. Welch, 7 Port. (Ala.) 211 (1800); Yates v. State, 47 Ark. 403 (1838); Hall v. Huse, 10 Mass. 172 (1880); s.c. 1 S. W. Rep. 05; 39 (1813) ; State v. Brown, 1 Mo. People v. Thrall, 50 Cal. 415 (1875) ; App. 80 (1877) ; Whart. Cr. Ev. (9th People v. Ah How, 34 Cal. 218 (1807) ; ed.) § 025. Compare Blackburn v. Di.xon v. State, 13 Fla. 031 (1871); Commonwealth, 12 Bush (Ky.) 187 Anderson y. State, 72 Ga. 98 (1883); (1870). Daniel r. State, 03 Ga. -339 (1879) ; ^ Territory v. Big Knot on Head, Eurp v. 6'tatc, 55 Ga. 130 (1875) ; s.c. O 5 546 HOMICIDE. [chap. XXIII. In Dow V. Murrill,^ Chancellor Walworth says that " the confessions of the party should always be scrutinized with caution ; as it is the most dangerous evidence that can be admitted in a court of justice, and the most liable to abuse. Although a witness is perfectly honest, it is impossible, in most cases, for him to give the exact words in which the. admission was made. And sometimes even the transporta- tion of the words of a party may give a meaning entirely I Am. Cr. Rep. 171 ; Nesbit v. State, 4;} Ga. 289 (1871) ; Stephen v. State, II Ga. 225 (1852) ; Williams v. Peo- ple, 101 111. 382 (1882) ; May i-. People, 92 111. 343 (1879) ; Bergen v. People, 17 111. 42G (1850); State v. Knowles, 48 Iowa, 598 (1878) ; Butler v. Com- monwealth, 2 Duv. (Ky.) 435 (1860); Commonwealth i\ Smith, 119 Mass. 305 (1870); Commonwealth v. Mc- Cann, 97 Mass. 580 (1807) ; People v. Lane, 49 Mich. 340 (1882) ; s.c. 13 N. W. Rep. 622 ; People v. Lambert, 5 Mich. 349 (1858) ; Pitts v. State, 43 Miss. 472 (1871) ; Jenkins v. State, 41 Miss. 582 (1807) ; Sam v. State, 33 Miss. 347 (1857) ; Brown v. State, 32 Miss. 433 (1856) ; Stringfellow v. State, 26 Miss. 157 (1853) ; State v. Patterson, 73 Mo. 695, 705 (1881); State V. German, 54 Mo. 526 (1874) ; s.c. 14 Am. Rep. 481 ; State v. Scott, 39 Mo. 424 (1867) ; State v. Lamb, 28 Mo. 218 (1859) ; Territory v. Farrell, (i Mont. 12 (1880) ; s.c. 9 Pac. Rep. 536; Terry v. McClin, 1 Mont. 394 (1871); Smith v. State, 17 Neb. 358 (1885) ; s.c. 22 N. W. Rep. 780; Priest V. State, 10 Neb. 393 (1880) ; s.c. G N. W. Rep. 468; State v. Guild, 10 N. J. L. (5 Halst.) 163 (1828) ; s.c. 18 Am. Dec. 404; People v. Jaehne, 103 N. Y. 182 (1886) ; s.c. 8 N. E. Rep. 374 ; People v. Bennett, 49 N. Y. 137 (1872); RulofE v. People, 18 N. Y. 179 (1858) ; s.c. 3 Park. Cr. Cas. (N. Y.) 401 ; Lyon v. Lyon, 62 Barb. (N. Y.) 138 (1861); Peo- ple V. Badgely, 16 Wend. (N. Y.) 63 (183(i); People v. Hennessey, 15 Wend. (N. Y.) 147 (1836) ; State v. Cowan, 7 Ired. (N. C.) L. 239 (1847) ; State r. Lewis, 1 Winst. (N. C.) No. I, 307 (1864) ; State i'. Gardiner, Wright (Ohio) 392 (1833) ; Laros v. Com- monwealth, 84 Pa. St. 200 (1877); Commonwealth v. Hanlon, 3 Brewst. (Pa.) 461 (1870) ; Commonwealth v. Pettit, 8 Phila. (Pa.) 608 (1871); Ty- ner v. State, 5 Humph. (Tenn.) 383 (1844) ; Strait v. State, 43 Tex. 486 (1875) ; Berry v. State, 4 Tex. App. 492 (1879) ; State v. Davidson, 30 Vt. 377 (1858) ; Smith v. Commonwealth, 21 Gratt. (Va.) 809 (1871) ; United States V. Williams, 1 Cliff. C. C. 5 (1858). See also Hughes v. Hughes, 19 Ala. 307 (1851) ; Moyler v. Moyler, 11 Ala. 620 (1847); Evans y. Evans, 41 Cal. 103 (1871) ; Woolfolk v. Wool- folk, 53 Ga. 661 (1875) ; Buckholts v. Buckholts, 24 Ga. 239 (1858) ; Stib- bins V. Stibbins, 1 Met. (Ky.) 476 (1858) ; Robbins m. Robbins, 100 Mass. 150 (1868); Billings v. Billings, 28 Mass. (11 Pick.) 461 (1831) ; True v. True, 6 Minn. 458 (1861) ; Armstrong V. Armstrong, 32 Miss. 279 (1856); White V. White, 45 N. H. 121 (1863) ; Derby v. Derby, 21 N. J. Eq. (6 C. E. Gr.) 36 (1870); Clutch v. Clutch, 1 N. J. Eq. (1 Saxt.) 474 (1831) ; Mil- ler V. Miller, 1 N. J. Eq. (1 Saxt.) .386 (1831) ; s.c. 2 N. J. Eq. (1 Green's Ch.) 1.39; Lyon v. Lyon, 62 Barb. (N. Y.) 138 (1861) ; Callender v. Cal- lender, 53 How. (N. Y.) Pr. 364 (1877); Doe i: Roe, 1 Johns. Cas. (N. Y.) 25 (1799); Betts >'. Betts, 1 Johns. Ch. (N. Y.) 197 (1814) ; Brainard y.Brain- ard, Wright (Ohio) .354 (1833) ; Mntchin >: Matchin, 6 I'a. St. .332 (1847) ; Richardson v. Richardson, 50 Vt. 119 (1877) ; Latham f. Latham, 30 Gratt. (Va.) 307 (1878). 1 6 Wend. (.\. Y.) 268 (1830). SEC. 500.] WEIGHT AND SUFFICIENCY. 547 different from the one whicli was intended to be conveyed to the witness.^ It is thought that, subject to the above cautions and re- strictions in regard to receiving and weighing them, confes- sions of guilt deliberately made are among the most effectual and satisfactory proofs that can be received.^ It is said that "their value depends on the supposition that they are delib- erate and voluntary, and on the presumption that a rational being will not make admissions prejudicial to his interest and safety, unless when urged by the promptings of truth and conscience." ^ Sec. 500. Same — Must be free aucl voluntary. — All confessions, before being admitted in evidence, must be shown to have been freely and voluntarily made. Confes- sions obtained by any direct or indirect promise or induce- ment held out to the party, or extracted by any sort of threats or violence, or by the exertion of any improper influence, are not admissible in evidence."* If, under the circumstances in 1 See People v. Gelabert, 89 Cal. (iOo (1870) ; Commonwealtli v. Galli- gan, li;} Mass. 202 (1873) ; Malin v. Malin, 1 Wend. (N. Y.) 620 (1828) ; Fouts V. State, 8 Ohio St. 08 (1857) ; State V. Gardiner, Wright (Oliio) 392 (1833) ; United States v. Nott, 1 McL. C. C. 499 (1839). 2 See State v. Brown, 48 Iowa, 382 (1878) ; Harris v. Harris, 2 Hagg. Eccl. 409 (1829) ; Mortimer v. Morti- mer, 2 Hagg. Const. 315 (1820); 1 Gilb. Ev. (Lofit's ed.) § 215 ; 1 Greenl. Ev. (14th ed.) § 215; Hawk. P. C., b. 2, c. 46, § 3, note (1). 3 1 Greenl. Ev. (14th ed.) § 215 4 Owen V. State, 78 Ala. 425 (1885) , Kelly V. State, 72 Ala. 244 (1882) Redd V. State, 69 Ala. 255 (1881) Young V. State, 68 Ala. 569 (1881) Murphy v. State, 63 Ala. 1 (1879) Porter v. State, 55 Ala. 95 (1876) Levison v. State, 54 Ala. 520 (1875) Ward V. State, 50 Ala. 120 (1873) Miller v. State, 40 Ala. 54 (1866) ; Dinan v. State, 39 Ala. .359 (1864); Joe V. State, 38 Ala. 422 (1863) ; Aaron v. State, 37 Ala. 106 (1861); Mose v. State, 36 Ala. 211 (1860) ; Franklin V. State, 28 Ala. 9 (1856) ; Brister v. State, 26 Ala. 107 (1855); Wyatt v. State, 25 Ala. 9 (1854) ; Yates v. State, 47 Ark. 172 (1886) ; s.c. 1 S. W. Rep. 65; Runnels v. State, 28 Ark. 121 (1873) ; Flanagin v. State, 25 Ark. 92 (1867); Love v. State, 22 Ark. 336 (I860) ; Austin v. State, 14 Ark. 556 (1854) ; People i-. Parton, 49 Cal. 632 (1875) ; People v. Barrio, 49 Cal. 342 (1874); People v. Johnson, 41 Cal. 452 (1871) ; People v. Jim Ti, 32 Cal. 60 (1867) ; People v. Smith, 15 Cal. 408 (1860) ; Beery v. United States, 2 Colo. 186 (1873) ; State v. Potter, 18 Conn. 166 (1846) ; State v. Bostick, 4 Harr. (Del.) 503 (1845); State v. Harman, 3 Harr. (Del.) 567 (1839); Metzger v. State, 18 Fla. 481 (1881) ; Simon v. State, 5 Fla. 285 (1853); Byrd v. State, 68 Ga. 661 (1882); Johnson v. State, 61 Ga. 305 (1878) ; Dumas r. State, 63 Ga. 600 (1879) ; Earp V. State, 55 Ga. 136 (1875) ; s.c. 1 Am. Cr. Rep. 171 ; Frain v. State, 40 Ga. 529 (1869) ; Rafe r. State, 20 Ga. 60 (1856); Jim v. State, 15 Ga. 5.35 (1854) ; Stephen v. State, 11 Oa. 225 (1852) ; Brown v. People, 91 111. 548 HOMICIDE. [chap. XXIII. the case, there be reasonable grounds for presuming that the confession was made under the influence of any promise or 506 (1878) ; Austin v. People, 51 111. 2ot3 (1809) ; Miller v. People, 39 III. 457 (1866) ; State v. Freeman, 12 Ind. 100 (1859) ; Smith v. State, 10 Ind. 106 (1858) ; Hamilton v. State, 3 Ind. 552 (1852) ; State v. Sopher, 70 Iowa, 494 (1886) ; s.c. 30 N. W. Rep. 917 ; State v. Chambers, 39 Iowa, 179 (1874) ; State v. Ostrander, 18 Iowa, 435 (1865) ; Hector v. Commonwealth, 80 Ky. 468 (1882) ; Young v. Com- monwealth, 8 Bush (Ky.) 366 (1871) ; Hudson V. Commonwealth, 2 Duv. (Ky.) 531 (1866) ; Rutherford v. Com- monwealth, 2 Met. (Ky.) 387 (1859) ; State V. Revells, 34 La. An. 381 (1882) ; s.c. 44 Am. Rep. 436 ; State v. Garvej-, 28 La. An. 925 (1876) ; State v. Kitty, 12 La. An. 805 (1887) ; State v. Nel- son, 3 La. An. 497 (1848) ; State v. Grant, 22 Me. 171 (1842) ; Nicholson V. State, 38 Md. 140 (1873) ; Common- wealth ('. Preece, 140 Mass. 276 (1885) ; s.c. 5 N. E. Rep. 494; Commonwealth V. Nott, 135 Mass. 269 (1883) ; Com- monwealth I). Smith, 119 Mass. 305 (1876) ; Commonwealth v. CuUen, 111 Mass. 435 (1873) ; Commonwealth v. Howe, 84 Mass. (2 Allen) 153 (1861) ; Commonwealth v. Whittemore, 77 Mass. (11 Gray) 201 (1858) ; Com- monwealth i\ Tuckerman, 76 Mass. (10 Gray) 173 (1857) ; Commonwealth V. Morey, 67 Mass. (1 Gray) 461 (1854) ; Commonwealth r. Taylor, 59 Mass. (5 Cush.) 605 (1850) ; Lambeth V. State, 23 Miss. 322 (1852) ; Com- Tnonwealth v. Knapp, 26 Mass. (9 Pick.) 496 (1830); People v. Wolcott, 51 Mich. 612 (1883) ; s.c. 17 N. W. Rep. 78; Flagg v. People, 40 Mich. 706 (1879) ; State v. Staloy, 14 Minn. 105 (1869) ; Simmons v. State, 61 Miss. 243 (1883) ; Garrard r. State, 50 Miss. 147 (1874); Cady r. State, 44 .Miss. 332 (1870) ; Frank r. State, 39 Miss. 705 (1861); Jordan r. State, 32 Miss. 382 (1856) ; Dick ;•. State, 30 Miss. 593 (1856); Lambeth I'. State, 23 Miss. 322 (1852); State V. Hopkirk, 84 Mo. 278 (1884) ; State V. Phelps, 74 Mo. 128 (1881) ; State V. Patterson, 73 Mo. 696 (1881) ; State V. Hagan, 54 Mo. 192 (1873) ; Stats V. Brockman, 46 Mo. 566 (1870) ; Couley V. State, 12 Mo. 462 (1849); Hector v. State, 2 Mo. 166 (1829) ; s.c. 22 Am. Dec. 454; State v. Squires, 48 N. II. 364 (1869) ; State v. Wentworth, 37 N. H. 196 (1858) ; State v. York, 37 N. H. 175 (1858) ; State v. Howard, 17 N. H. 171 (1845) ; State v. Guild, 10 N. J. L. (5 Ha 1st.) 163 (1828) ; s.c. 18 Am. Dec. 404 ; Derby o. Derby, 21 N. J. Eq. (6 C. E. Gr.) 36 (1870) ; State V. Carrick, 16 Nev. 120 (1881); People V. Druse, 103 N. Y. 655 (1886) ; s.c. 8 N. E. Rep. 733 ; People v. Mon- don, 103 N. Y. 211 (1886) ; s.c. 8 N. E. Rep. 496 ; Cox v. People, 80 N. Y. 500 (1880) ; People v. Phillips, 42 N. Y. 200 (1870) ; People r. Wentz, 37 N. Y. 309 (1867) ; People v. McMahon, 15 N. Y. 384 (1857) ; O'Brien v. People, 48 Barb. (N. Y.) 274 (1867) ; Ward V. People, 3 Hill (N. Y.) 395 (1842) ; People r. Thoms, 3 Park. Cr. Cas. (N. Y.) 256 (1855) ; People v. Burns, 2 Park. Cr. Cas. (N. Y.) 34 (1823) ; State V. Mills, 91 N. C. 581 (1884) ; State V. Whitfield, 70 N. C. 356 (1874); State r. Lowhorne, 66 N. C. 638 (1872); State V. Patrick, 3 Jones (N. C.) L. 443 (1856) ; Price v. State, 18 Ohio wSt. 418 (1868) ; Fouts v. State, 8 Ohio St. 98 (1857) ; Spears v. State, 2 Ohio St. 584 (1853) ; Laros v. Common- wealth, 84 Pa. St. 200 (1877) ; Fife ,: Commonwealth, 29 Pa. St. 429 (1857); Commonwealth v. Hanlon, 3 Brewst. (Pa.) 461 (1870) ; State r. Gossett, 9 Rich. (S. C.) L. 428 (1856); State i'. Freeman, 1 Speers (S. C.) L. 57 (1842) ; McGlothlin r. State, 2 Coldw. (Tenn.) 223 (1865); White v. State, 3 Ileisk. (Tenn.) 338 (1872); More- head V. State, 9 Humj)!!. (Tenn.) 635 (1849); Boyd ;•. State, 2 Humph. (Tenn.) 39 (1840) ; State v. Rigsby, 6 Lea (Tenn.) 554 (1880); Strait r. State, 43 Te.\. 486 (1875) ; Barnes r. State, 'M Tex. 356 (1872) ; Cain v. SEC. 501.] WEIGHT AND SUFFICIENCY. 549 any threat of a temporal nature, it should not be received in evidence.^ Sec. 501. Same — Induceiiieut to confession — Persons in authority. — The inducement must relate to the person charged ^ and to the offence for which he is apprehended ; ^ but Avhere a threat was held out to the prisoner without the nature of the charge being stated, and subsequently the nature of the charge was stated, and thereupon a confession was made, it was held to be inadmissible.^ State, 18 Tex. 387 (18")7) ; Noleii v. State, U Tex. App. 474 (188;}) ; s.c. 40 Am. Rep. 247 ; Grosse v. State, 11 Tex. App. .3(54 (1882) ; Masseyy. State, 10 Tex. App. 045 (1881) ; State v. Dai/, 55 Vt. 510 (1883) ; s.c. 4 Am. Cr. Rep. 104; State v. Carr, 37 Vt. 191 (1804) ; State V. Walker, 34 Vt. 290 (1801) ; State V. Phelps, 11 Vt. 110 (1839); Thompson V. Commonwealth, 20 Gratt. (Va.) 724 (1870) ; Vaughan v. Com- monwealth, 17 Gratt. (Va.) 570 (1807); Smith I'. Commonwealth, 10 Gratt. (Va.) 734 (1853); United States v. Charles, 2 Cr. C. C. 70 (1813) ; United States V. Fumphreys, 1 Cr. C. C. 74 (1802) ; United States v. Nott, 1 McL. C. C. 499 (1839) ; 3 Russ. on Cr. (9th Am. ed.) 307. See post, § 500. 1 Owen V. State, 78 Ala. 425 (1885) ; Redd V. State, 09 Ala. 255 (1881) ; Murphy v. State, 03 Ala. 1 (1879) ; Porter \'. State, 55 Ala. 95 (1870) ; Levison v. State, 54 Ala. 520 (1875) ; Miller v. State, 40 Ala. 54 (1800); Bris- ter V. State, 20 Ala. 107 (1855). Run- nels V. State, 28 Ark. 121 (1873) ; Peo- ple I'.Barrie, 49 Cal. 342 (1874) ; State V. Bostick,4 Harr. (Del.) 503 (1845) ; Metzger v. State, 18 Fla. 481 (1881) ; Byrd v. State, 08 Ga. 0(51 (1882) ; Du- mas V. State, (53 Ga. 000 (1879) ; Mil- ler V. People, .39 111. 457 (18(56) ; Smith V. State, 10 Ind. 100 (1858) ; Rector v. Commonwealth, 80 Ky. 408 (1882) ; Commonwealth ?-'. Nott, 135 Mass. 209 (1883) ; Commonwealth v. Cuffee, 108 Mass. 285 (1871) ; Commonwealth V. Tuckerman, 70 Mass. (10 Gray) 190 (1857) ; Commonwealth v. Tay- lor, 59 Mass. (5 Cush.) 005 (1850) ; People V. Wolcott, 51 Midi. 012 (1883) ; s.c. 17 N. W. Rep. 78 ; Flagg r. People, 40 Mich. 700 (1879) ; Sim- mons r. State, 01 Miss. 243 (1883) ; Jordan v. State, 32 Miss. 382 (185(5) ; Van Buren v. State, 24 Miss. 512 (1852) ; State v. Hopkirk, 84 Mo. 278 (1884) ; State v. Phelps, 74 Mo. 128 (1881) ; State v. Patterson, 73 Mo. 090 (1881) ; State v. Plagan, 54 Mo. 192 (1873) ; Hecioi- v. State, 2 Mo. 100 (1829) ; s.c. 22 Am. Dec. 4-54 ; Stale v. Carrick, 10 Nev. 120 (1881) ; State r. York, 37 N. H. 175 (1858) ; State v. Guild, 10 N. J. L. (5 Haist.) 1(J3 (1828) ; s.c. 18 Am. Dec. 404 ; Cox v. People, 80 N. Y. 500 (1880) ; People V. Wentz, 37 N. Y. -309 (1807) ; State V. Whitfield, 70 N. C 350 (1874) ; Spears v. State, 2 Ohio St. 684 (1853) ; Fife V. Commonwealth, 29 Pa. St. 429 (1857) ; State v. Rigsby, Lea (Tenn.) .554 (1880) ; Cain v. State, 18 Tex. 387 (1857) ; Davis v. State, 2 Tex. App. 588 (1878) ; State v. Walker, 34 Vt. 290 (1801) ; State v. Phel/is, 11 Vt. 110 (1839); s.c. 34 Am. Dec. 072 ; 3 Russ. on Cr. (9th Am. ed.) 308. 2 In Plana gin r. State, 25 Ark. 92 (1807), it is said that where the threats made, or inducements held out, took effect through suspected persons, it is not relevant to inquire into them. 3 Rex r. Warner, 3 Russ. Cr. (5th Eng. ed.) 452 (1832). * Reg. V. Luckhurst, 1 Dears C. C. 245 (1853). 550 HOMICIDE. [chap. XXIII. The inducement to a confession, in order to render such confession inadmissible in evidence, must have been held out by a person in authority.^ Where the inducement is held out by a person in superior authority and the confession is made to a person in inferior authority, it will be inadmissible in evidence, especially if such inferior officer did not give the prisoner any caution.^ But it is thought that mere sugges- tions or advice to the accused to confess, or even solemn entreaty to do so by a person holding an official position, will not render the confession inadmissible .^ Whether the confession was freely and voluntarily made without the incentive of hope or fear by any person, is to be determined by the judge trying the case, upon consideration of the age, station, and character of the prisoner, and the cir- cumstances under which it was made.* It is thought that a confession made to an officer will not be excluded from the jury merely because it appears that the accused was previously in the custody of another officer. In such a case it is not a condition precedent to the admission of such evidence to require that the latter officer be called, unless the circum- stances under which the confession was made render it probable that the accused held a conversation with the first 1 Roscoe's Cr. Ev. (lOtli ed.) 4G. Vt. 296 (1881) ; Vauglian v. Corn- See Spicer v. State, 09 Ala. 159 (1881) ; monwealth, 17 Gratt. ( Va.) 576 (1867); Ward I'. State, 50 Ala. 120 (1873) ; Smith v. Commonwealth, 10 Gratt. People V. Barric, 49 Cal. 342 (1874) ; (.Va.) 734 (1853) ; Reg. v. Taylor, 8 Austine v. People, 51 111. 236 (1869) ; Car. & P. 733 (1839) ; s.c. 34 Eng. Young V. Commonwealth, 8 Bush C. L. 990; Reg. f. Moore, 2 Den. C. C. (Ky.) 360 (1871) ; Rutherford v. 520 (1852). See post, § 506. Commonwealth, 2 Mete. (Ky.) 387 2 Re.x. v. Cooper, 5 Car. & P. 535 (1859); Commonwealth v. Culver, 126 (1833). Mass. 464 (1879) ; Commonwealth 3 ytate v. Fredericks, 85 Mo. 145 V. McCann, 97 Mass. 580 (1867) ; (1884). Commonwealth v. Tuckerman, 70 * Commonwealth v. Knapp, 27 Mass. (10 Gray) 173 (1857) ; State v. Mass. (10 Pick.) 496 (1830) ; State York, 37 N. H. 175 (1858) ; People v. Fredericks, 85 Mo. 145 (1884) ; V. Wentz, 37 N. Y. 303 (1867) ; State State v. Guild, 10 N. J. L. (5 V. Lowhorne, 06 N. C. 639 (1872) ; Halst.) 175 (1828) ; United States State V. Wintzingerode, 9 Oreg. 153 v. Nott, 1 McL. C. C. 490 (1839) ; (1881) ; State v. Kirby, 1 Strobh. Reg. v. Drew, 8 Car. & P. 140 (1837) ; (S. C.) L. 155 (1846) ; Wilson v. s.c. 34 Eng. C. L. 654 ; Rex v. State, 3 Heisk. (Tenn.) 232 (1871) ; Court, 7 Car. & P. 486 (1836) ; s.c. Boyd V. State, 2 Humph. (Tenn.) 39 32 Eng. C. L. 721 ; Rex r. Tiiomas, 7 (1840) ; Deathridge v. State, 1 Sneed Car. & P. 345 (1836) ; s.c. 32 Eng. (Tenn.) 75 (1853) ; State v. Day, 55 C. L. 048. Vt. 510 (1883) ; State v. Walker, 34 SEC. 501.] WEIGHT AND SUFFICIENCY. 551 officer upon the subject of a confession, or that there is a col- lusion between the officers.^ If one is a person in authority who is, or in the ordinary courte of things will become, the prosecutor ; the constable or other officer in charge of the prisoner ; an}^ person having judicial authority over the prisoner ; and the master or mis- tress of the prisoner, wliere the offence concerns them, — any confession made to them will be inadmissible in evidence against the prisoner.^ And it has been said that confessions will be invalidated where inducements were held out by a constable or other officer ; ^ some person assisting the consta- ble or other officer in the apprehension or detention of the prisoner ; ^ by a jailer ^ or chaplain of the jail where the pris- oner is confined ; ^ a magistrate acting in the business,* or other magistrate,^ or a magistrate's clerk ; " by the master or mis- tress to a servant ; ^ by any one having authority over the prosecution itself;^ by an officer having the prisoner in cus- tody ; '^^ by a person having authority in the matter,^^ such as a woman in whose custody the prisoner, a female, with whom 1 Hopt r. Teople of Utah, 110 U. S. 574 (1884) ; bk. 28 L. ed. 202. See King V. State, 40 Ala. 314 (1867); Peo- ple r. Abbott, 4 Pac. Rep. 7(59 (1884), affirmed without report in 66 Cal. ; Cobb I'. State, 27 Ga. 648 (1859) ; Commonwealth v. CuUen, 111 Mass. 435 (1873) ; State v. Guy, 69 Mo. 430 (1879); Ballard i-. State', 19 Neb. 609 (1886) ; s.c. 28 N. W. Rep. 271 ; Peo- ple V. Rogers, 18 N. Y. 9 (1858); Harris v. State, 6 Tex. App. 97 (1879) ; Walker v. State, 2 Tex. App. 326 (1878). 2 Ward V. State, 50 Ala. 120 (1873) ; Beery v. United States, 2 Colo. 186 (1873) ; State v. Bostick, 4 Harr. (Del.) 564 (1845) ; Austine v. People, 51 111. 236 (1869) ; Commonwealth v. Sego, 125 Mass. 210 (1878) ; State v. Gossett, 9 Rich. (S. C) 428 (1856) ; State V. Tatro, 50 Vt. 483 (1878); Vaughan v. Commonwealth, 17 Gratt. (Va.) 576 (1867) ; Shifflet v. Common- wealth, 14 Gratt. (Va.) 652 (1858); Reg. V. Moore, 2 Den. C. C. 526 (1852) ; Roscoe's Cr. Ev. (10th ed.) 46. ^ Rex V. Sexton, 1 Burn J. D. & Williams, 1086. * 1 Phill. Ev. (7th ed.) 407. 5 Rex V. Gilham, 1 Moo. C. C. 186 (1828). 6 Rex V. Clewes, 4 Car. & P. 221 (1830) ; s.c. 19 Eng. C. L. 485. ^ Reg. V. Drew, 8 Car. & P. 140 (1837) ; s.c. 34 Eng. C. L. 654. s Rex V. Upchurch, 1 Moo. C. C. 465 (1836). 9 Rex 1-. Parratt, 4 Car. & P. 570 (1831) ; s.c. 19 Eng. C. L. 654. 10 Rex V. Shepherd, 7 Car. & P. 579 (1830) ; s.c. 32 Eng. C. L. 768 ; Rex v. Mills, 6 Car. & P. 146 (18-33) ; s.c. 25 Eng. C. L. 365; Rex v. Swatkins, 4 Car. & P. 548 (1831) ; s.c. 19 Eng. C. L. 643; Rex v. Thornton, I Moo. C. C. 27 (1824) ; Rex v. Sextons, 6 Petersd. Abr. 84 (1822). Compare Commonwealth r. Mosler, 4 Pa. St. 264 (1846). 11 Rex V. Parratt, 4 Car. & P. 570 (1831); s.c. 19 Eng. C. L. 569; 1 Phill. Ev. (7th ed.) 407. 552 HOMICIDE. [chap. XXIII. she had been left by the officer ; i by a private person in the presence of one in authority with his assent, whether direct or implied ; ^ by the prosecutor ; ^ by the prosecutor's attor- ney ; * by the prosecutor's wife ; ° by the mother-in-law cj^ the prosecutor,*^ in his house and in the presence of his wife.'^ Sec. 502. Same — Confessions made while under arrest. — The fact that a confession was made by a prisoner while under arrest, or that it was made to the officer in whose custody he was, or in answer to questions put to him by such officer, will not be sufficient to render the confession inadmis- sible, unless it was obtained through a promise of benefit, or through fear.^ The fear necessary to induce such confes- sion must be something more than the fear which is produced by the fact that the defendant was accused of a crime and was arrested and taken into custody.^ 1 Rex V. Enoch, 5 Car. & P. 539 (1838) ; s.c. 24 Eng. C. L. 696. 2 Reg. V. Taylor, 8 Car. & P. 733 (1839) ; s.c. 34 Eiig. C. L. 990 ; Rex V. Pountney, 7 Car. & P. 302 (1836) ; s.c. 32 Eng. C. L. 625 ; Reg. v. Gar- ner, 1 Den. C. C. 329 (1848). 3 State V. Robert, 1 Dev. (N. C.) L. 259 (1827); Reg. r. Laugher, 2 Car. & K. 225 (1846); s.c. 62 Eng. C. L. 224 ; Rex v. Pountney, 7 Car. 6 P. 302 (1830) ; s.c. 32 Eng. C. L. 625. ■i State V. Robert, 1 Dev. (N. C.) L. 259 (1827) ; Rex v. Partridge, 7 Car. & P. 551 (1836) ; s.c. 32 Eng. C. L. 754 ; Rex v. Gibbons, 1 Car. & P. 97, note (a) (1823) ; s.c. 12 Eng. C. L. m ; Rex v. Jenkins, R. & R. 492 (1822) ; Reg. v. Hearn, 1 Car. & Marsh. 109 (1841) ; s.c. 41 Eng. C. L. 05; Thompson's Case, 1 Leach C. C. 291 (1783) ; Cass' Case, 1 Leach C. C. 293, note (a) (1784) ; Rex i-. Stacey, 3 IJuss Cr. 386, 9 Am. etl., 5 Eng. ed. 4(54 (1830) ; Rex v. Jones, R. & R. 152 (1809); Rex v. Griffin, R. & R. 151 (1809). 6 Reg. r. Croydon, 4 Cox C. C. 67. 6 Reg. r. Taylor, 8 Car. & P. 733 (1839) ; s.c. 34 Eng. C. L. 990; Reg. V. Hcwett, 1 Car. & Marsh. 534 (1842) ; s.c. 41 Eng. C. L. 65; Rex r. Up- church, 1 Moo. C. C. 465 (1836). ' Rex V. Simpson, 1 Moo. C. C. 410 (1834). 8 People V. Abbott (Cal.), 4 Pac. Rep. 769 (1884) ; State v. Patter- son, 73 Mo. 695 (1881) ; Jackson v. State, 69 Ala. 251 (1881) ; Spicer V. State, 69 Ala. 159 (1881); Redd V. State, 68 Ala. 492 (1881); State V. Guy, 69 Mo. 430 (1879); Cox r. People, 80 N. Y. 500 (1880); State V. Tatro, 50 Vt. 483 (1878). See Austin v. State, 14 Ark. 556 (1854); Cobb v. State, 27 Ga. 648 (1859) ; Stephen v. State, 11 Ga. 225 (1852) ; Commonwealth v. Cuffee, 108 Mass. 285 (1871) ; Jones v. State, 58 Miss. 349 (1880) ; Cox v. People, 80 N. Y. 500 (1880) ; Murphy v. People, 63 N. Y. 590 (1876) ; People v. McMa- hon, 2 Park. Cr. Cas. (N. Y.) 663 (1855) ; State v. Jefferson, 6 Ired. (N. C.) L. 305 (1846) ; Common- wealth V. Mosler, 4 Pa. St. 264 (1846). Compare Young v. Commonwealth, 8 Bush (Ky.) 366 (1871); People v. Wentz, 37 N. Y. 303 (1867). 9 Commonwealth v. Preece, 140 Mass. 276 (1885) ; s.c. 5 N. E. Rep. 494; Commonwealth v. Smith, 119 Mass. 305 (1870); Commonwealth r. SEC. 503.] WEIGHT AND SUFFICIENCY. 653 Under the Texas statute a judicial confession made wlule in custody is not admissible in evidence against the prisoner.^ Sec. 503. Same — Confessions made through fear of mob violence. — Whether or not confessions which are made through fear of mob violence are admissible in evi- dence is an unsfettled question. In Self v. State ^ a mob had surrounded a jail, and the sheriff told the prisoner that she was " gone up," whereupon she confessed, and on the trial the court held the confession was not admissible. In Redd v. State ^ the prisoner was advised that a mob was gathering in town to rescue him from jail, and knew that a guard of sev- eral persons had been summoned to protect him, one of whom asked him "why he was afraid of a mob," and the sheriff himself, in the presence of half a dozen of the guards, stated to the prisoner that he was in a bad fix, and in reply to a question put by the prisoner had told him that " sometimes in cases of assaidt and 'battery and similar cases it would be best to plead guilty ; " whereupon the prisoner confessed his guilt. On the trial the court held that such confession was obtained under the combined influence of hope and fear, and was inadmissible. In the case of Young v. State * two persons who were charged with a murder then recently perpetrated were taken from the jail by a body of armed men, and hand- cuffed, chained together and guarded, and carried seven miles into the country, to a church near the scene of the murder ; the crowd in the meantime having doubled in size. On arriving at the church, one of the prisoners, without any solicitation, so far as was shown, asked permission to have a "■friendly" talk with one of the crowd, whom the prisoner designated by name, and the jjrivilege having been granted by the leader, the prisoner, together Avith tlie party selected by him and one of the. original armed guards, went a short distance into the woods, where the prisoner confessed that he assisted in killing the deceased, and shortly afterwards the other prisoner also confessed under similar circumstances. The court held that the prisoners' confessions were not shown Mitchell, 117 Mass. 431 (1875) ; State 2 r, Baxt. (Tenn.) 244 (1873). V. Carlisle, 57 Mo. 102 (1874). 3 69 Ala. 255 (1881). 1 Speer v. State, 4 Tex. App. 474 « 68 Ala. 569 (1881). (1879). 554 HOMICIDE. [chap. XXIII. to have been uninfluenced by their surroundings, suspicious and nienacino' in their character, were not shown to have been voluntary, and were therefore not admissible in evi- dence. In Cady v. State,^ where the prisoner, after his arrest, was tied by a party of armed negroes and taken to the spot where the body of the murdered man lay, many of them being excited and insisting that the prisoner should be hung, and lie thereupon confessed, the court held that the confession was admissible in evidence.^ In Honeycutt v. State ^ the prisoner, who was accused of murder, was brought hand- cuffed to a place where a number of persons and relatives of the deceased were assembled, and was there threatened with violence. The officer assured him that he would be protected. His confession, made while he was handcuffed and after the threat, without any solicitation, was held admissible. Sec. 504. Same — Confessions procured by artifice and deception. — Confessions procured by artifice and deception are not inadmissible for that reason, except in those cases where the artifice or deception was such as is calculated to produce an untrue confessit)n.^ The question in all such instances is whether there has been any threat or promise of such a nature that the prisoner would be likely to tell an untruth from fear of the threat, or because of hope of profit from the promise.^ Sec. 505. Same — Confession to clei-gymau. — Admis- sions or confessions made to a clergyman or priest, for the sake of easing the culprit's conscience, and made to such clergyman or priest in his professional character in the course of discipline enjoined by his church, are admissible in evidence in a case of homicide.^ 144 Miss. 332 (1870). (1857); Price v. State, 18 Oiiio St. 2 See State v. Ingram, 16 Kan. 14 418 (1868) ; Commonwealth v. Han- (1876). Ion, 3 Brewst. (Pa.) 461 (1870); 3 8 Baxt. (Tenn.) 371 (1875). Wliart. Cr. Ev. § 670. 4 King V. State, 40 Ala. 314 (1867) ; '"> Keg. i'. Reason, 12 Cox C. C. 228 State V. Staley, 14 Minn. 105 (18(i!t); (1873). State i;. Fredericks, 85 Mo. 145 (1884); « People v. Gates, 13 Wend. (N. Y.) State i;. Hopkirk, 84 Mo. 278 (1884); 311 (1835). See Commonwealth v. State V. Piielps, 74 Mo. 128 (1881); Drake, 15 Mass. 161 (1818); Rex v. State V. Jones, 54 Mo. 478 (1874); Gilliam, 1 Moo. C. C. 186 (1828); Balbo V. People, 80 N. Y. 484 (1880); Peake's Evidence, 253. People V. McMahon, 15 N. Y. 391 SEC. 508.] WEIGHT AND SUFFICIENCY. bbo Sec. 506. Same — Confessions obtained by questioning-. — Confessions elicited by questions put by persons in author- ity are admissible in evidence.^ But where a committing magistrate compels the prisoner to answer under oath ques- tions put to him, the admissions made by him during such examination are not admissible in evidence.^ Sec. 507. Same — Confessions during- examination. — Confessions made in the course of a legal proceeding, which have no reference to the charge upon the prosecution of which they are sought to be used, are admissible in evidence against the person making them ; ^ and evidence given in a trial for homicide may be us_ed as a confession in a subsequent trial for the same offence.* Sec. 508. Same — Confessions inferred wben. — The con- duct or demeanor of a prisoner on being charged with a crime, or upon allusions being made to it in his presence, may be given in evidence against him.^ If the prisoner is an infant 1 Carroll v. State, 23 Ala. 28 (185?.); State V. McLaughlin, 44 Iowa, 82 (1876); People v. Restell, 3 Hill (N. Y.) 289 (1842) ; People. f. Smith, 1 Wheel. Cr. Cas. (N. Y.) 54 (1822) ; State V. Cowan, 7 Ired. (N. C.) L. 239 (1847) ; State v. Kirby, 1 Strobh. (S. C.) 378 (1847) ; Wolf v. Common- wealth, 30 Gratt. (Va.) 833 (1878); 1 Greenl. Ev. (14th ed.) § 224 ; Whart. Cr. Ev. (9th ed.) § GOG. See ante, §§ 500, 501. '■2 People V. Soto, 49 Cal. G9 (1874); State V. Garvey, 25 La. An. 191 (1873) ; State v. Vandergraff, '23 La. An. 96 (1871) ; State v. Gilman, 51 Me. 206 (1862) ; Hendrickson v. Peo- ple, 10 N. Y. 12 (1854); State v. Marshall, 86 Mo. 400 (1865) ; State V. Matthews, 66 N. C. 106 (1872); State V. Broughton, 7 Ired. (N". C.) L. 96 (1846) ; State v. Young, Winst. (N. C.) L. 126 (1868) ; Common- wealth r. Harman, 4 Pa. St. 269 (1846) ; Nelson v. St.ate, 2 Swan (Tenn.)237 (1852); Shoeffler y. State, 3 Wis. 823 (1854); United States v. Williams, 1 Cliff. C. C. 5 (18-58); United States i'. Bascadore, 2 Cr. C. C. 30 (1811) ; United States v. Duffy, 1 Cr. C. C. 164 (1804) ; Whart. Cr. Ev. (9th ed.) § GGii. Compare Clough v. State, 7 Neb. 320 (1878). 3 Reg. V. Scott, 25 L. J. M. C. 128 (1856); s.c. 7 Cox C. C. 164; Dears & B. C. C. 47. * People V. Kelley, 47 Cal. 125 (1873) ; Snyder v. State, 59 Ind. 105 (1877) ; Anderson v. State, 2G Ind. 89 (1866) ; State v. Gilman, 51 Me. 206 (18(i2) ; Commonwealth v. Rey- nolds, 122 Mass. 454 (1877) ; Teach- out V. People, 41 N. Y. 7 (1869); Hendrickson v. People, 10 N. Y. 12 (1854) ; s.c. 61 Am. Dec. 721 ; State V. Broughton, 7 Ired. (N. C.) L. 96 (1846) ; Williams v. Commonwealth, 29 Pa. St. 102 (1857) ; Alston i-. State, 41 Tex. 39 (1874) ; Dickerson v. State, 48 Wis. 288. (1879) ; s.c. 4 N. W. Rep. 321. Compare People r. Garvey, 25 La. An. 191 (1873) ; Jack- son V. State, 56 Miss. 311 (1879); Josephine v. State, 39 Miss. 613 (1860). 5 Lawson v. State, 20 Ala. 65 (1852) ; State v. Welch, 7 Port. (Ala.) 463 (1838); People v. Estrado, 49 556 HOMICIDE. [chap. XXIII. under the age of fourteen years, it must be affirmatively shown that he had sufficient capacity to know that the act was wrong, or his confession will not be admissible.^ Sec. 509. Same — The whole confession must he taken tog-ether. — In the admission of confessions in evidence the whole of what the person said on the subject at the time of making the confession must be taken together,^ and may be Cal. 171 (1874) ; People v. Stanley, 47 Cal. 113 (1874) ; Drumright v. State, 29 Ga. 430 (1859) ; Slatteri/ v. People, 76 111. 217 (1875) ; s.c. 1 Am. Cr. Rep. 29, and note ; Broyles v. State, 47 Ind. 251 (1874) ; State v. Pratt, 20 Iowa, 267 (1866) ; Frost v. Commonwealth, 9 B. Mon. (Ky.) 362 (1849) ; State v. Johnson, 35 La. An. 842 (1883) ; State V. Reed, 62 Me. 129 (1874) ; Robinson V. Blen, 20 Me. 109 (1841) ; Batturs V. Sellers, 5 Harr. & J. (Md.) 117 (1820) ; Commonwealth v. Brown, 121 Mass. 69 (1876) ; McDonough v. Mc- Neil, 113 Mass. 96 (1873) ; Common- wealth V. Harvey, 67 Mass. (1 Gray) 487 (1854) ; Commonwealth v. Ken- ney, 53 Mass. (12 Mete.) 235 (1847) ; Commonwealth v. Call, 38 Mass. (21 Pick.) 515 (1839) ; Donnelly r. State, 26 N. J. L. (2 Dutch.) 463, 601 (1857) ; Kelley V. People, 55 N. Y. 565 (1874) ; s.c. 14 Am. Rep. 342; McKee v. People, 36 N. Y. 113 (1867) ; Peo- ple V. Green, 1 Park. Cr. Cas. (N. Y.) 11 (1845) ; State ;;. Bowman, 80 N. C. 432 (1879) ; State v. Swink, 2 Dev. & B. (N. C.) L. 9 (1836) ; State v. Per- kins, 3 Hawks (N. C.) L. 377 (1824) ; Murphy v. State, 36 Ohio St. 628 (1881) ; Ettinger v. Commonwealth, 98 Pa. St. 338 (1881) ; Noftsinger v. State, 7 Tex. App. 301 (1880) ; "Bow- den V. Johnson, 107 U. S. (17 Otto) 262 (1882); bk. 27 L. ed. 386; Ros- coe's Cr. Ev. (10th ed.) 50. 1 Godfrey r. State, 31 Ala. 323 (1858) ; State v. Fowler, 52 Iowa, 103 (1879) ; Willet v. Commonwealth, 13 Bush (Ky.) 230 (1877); Common- wealth V. Mead, 92 Mass. (10 Allen) 398 (1865) ; State r. Aaron, 4 N. J. L. (1 South.) 231 (1818); s.c. 7 Am. Dec. 592 ; State v. Doherty, 2 Overt. (Tenn.) 80 (1806) ; State v. Learnard, 41 Vt. 585 (1869). 2 William V. State, 39 Ala. 532 (1865) ; Corbett v. State, 31 Ala. 329 (1858); Frank v. State, 27 Ala. 37 (1855) ; Chambers v. State, 26 Ala. 59 (1855) ; People v. Gelabert, 39 Cal. 663 (1870); People v. Murphy, 39 Cal. 52 (1869); People ;;. Navis, 3 Cal. 106 (1853); Peterson v. State, 47 Ga. 524 (1873) ; Long v. State, 22 Ga. 40 (1857) ; State v. Elliott, 15 Iowa, 72 (1863) ; State v. Isaac, 3 La. An. 359 (1848) ; Commonwealth v. Keyes, 77 Mass. (11 Gray) 323 (1858) ; Alfred v. State, 37 Miss. 296 (1859) ; State V. Hollenscheit, 61 Mo. 302 (1875) ; State v. Marten, 28 Mo. 530 (1859) ; Green v. State, 13 Mo. 382 (1850) ; Bower v. State, 5 Mo. 364 (1838) ; Kelsey v. Bush, 2 Hill (N. Y.) 440 (1842); People v. Johnson, 2 Wheel. Cr. Cas. (N. Y.) 377 (1824) ; State V. Worthington, 64 N. C. 594 (1870) ; Crawford v. State, 4 Coldw. (Tenn.) 190 (1867) ; Tipton v. State, Peck (Tenn.) 308 (1824) ; Conner v. State, 34 Tex. 659 (1871); State v. McDonnell, 32 Vt. 491 (1860) ; State V. Mahon, 32 Vt. 241 (1859) ; Brown V. Commonwealth, 9 Leigh (Va.) 633 (1838); Griswold v. State, 24 Wis. 144 (1869) ; United States v. Prior, 5 Cr. C. C. 37 (1836); Respublica v. McCarty, 2 U. S. (2 Dall.) 86 (1781) ; bk. 1 L. ed. ; United States v. Wilson, 1 Baldw. C. C. 78 (1830); Roscoe's Cr. Ev. (10th ed.) 54. Compare Levi- son V. State, 54 Ala. 520 (1875) ; Mc- Cuiloch V. State, 48 Ind. 109 (1874) ; Commonwealth i-. Pitsinger, 110 Mass. 101 (1872). SEC. 510.] WEIGHT AND SUFFICIENCY, 557 evidence for the prisoner as well as against liim ; yet the jury may, if they think proper, believe one part of it and disbelieve another.^ Sec. 510. Testimony of accomplice. — It is a general rule in this country, as Avell as in England, that the admission of the testimony of an accomplice rests in the sound discretion of the trial judge.^ At common law,'^ and in some of the states,* the uncorroborated testimony of an accomplice may 1 Rex V. Clewes, 4 Car. & P. 221 (1830) ; s.c. 19 Eng. C. L. 485. See also r^iland v. State, 52 Ala. 322 (1875) ; People ;■. Wyman, 15 Cal. 70 (18G0) ; State v. West, 1 Houst. Cr. Cas. (Del.) .371 (1873) ; State v. llolleiisdieit, Gl Mo. 302 (1875) ; Fox V. Lniiibson, 8 N. J. L. (3 Ha 1st.) 275 (1820) ; Roberts r. Gee, 15 Barb. (\. Y.) 440 (1853) ; Kelsey r. Biisli, 2 Hill (N. Y.) 441 (1842) ; Blackbiirii V. State, 23 Ohio St. 14(3 (1872); Young V. State, 2 Yerg. (Tenn.) 202 (1829); State v. Mahon, 32 Vt. 241 (1859) ; Brown v. Commonwealth, 2 Leigh (Va.) 769 (1830) ; Griswold v. State, 24 Wis. 144 (1809) ; Rex r. Steptoe, 4 Car. & P. 307 (1830) ; s.c. 10 Eng. C. L. 572. 2 Commonwealth v. Brown, 130 Mass. 279 (1881) ; People v. Whipple, 9 Cow. (N. Y.) 707 (1827) ; Hawk. P. C, b. 2, c. 46, § 94. Compare Run- nels V. State, 28 Ark. 121 (1873). 3 State V. Stebbins, 29 Conn. 403 (1801) ; Sumpter r. State, 11 Fla. 247 (1867) ; Collins v. People, 98 111. 584 (1881) ; .«!.c. 38 Am. Rep. 105 ; Earll V. People, 73 111. 329 (1874) ; Aycrs r. State, 88 IncL 275 (1882) ; Johnson v. State, 65 Ind. 269 (1870) ; Stocking V. State, 7 Ind. 326 (1855) ; Dawley v. State, 4 Ind. 128 (1853) ; Johnson v. State, 2 Ind. 652 (1851) ; State V. Russell, .33 La. An. 1.35 (1881); Commonwealth \. Holmes, 127 Mass. 424 (1870); s.c. .34 Am. Rep. 391, note ; People r. O'Brien, 60 Mich. 8 (1886) ; s.c. 26 N. W. Rep. 795 ; Ham- ilton V. People, 20 Mich. 173 (1874) ; Wliite ?;. State, -52 Mi.ss. 216 (1876); State V. Watson, 31 Mo. 361 (1861) ; Olive V. State, 11 Neb. 1 (1881) ; s.c. 7 N. W. ]?ep. 444 ; State v. Hyer, 39 N. J. L. (10 Vr.) 598 (1877) ; Lindsay V. People, 63 N. Y. 143 (1875) (this rule is now changed by the N. Y. Penal Code) ; I'eople v. Costello, 1 Den. (N. Y.) 83 (1845) ; People v. Ryland, 28 Hun (N. Y.) 508 (1883) ; People f. Davis, 21 Wend. (X. Y.) 313 (1839) ; State v. Holland, 83 N. C. 624 (1880) ; s.c. -35 Am. Rep. 587 ; Watson V. Commonwealth, 95 Pa. St. 418 (1880) ; State v. Potter, 42 Vt. 495 (1869) ; Ingalls v. State, 48 Wis. 647 (1879); s.c. 4 N. W. Rep. 785; United State v. Bicksler, 1 Maokey (D. C.) 341 (1881) ; United States v. Neverson, 1 Mackey (D. C.) 152 (1880); Whart. Cr. Ev. (0th ed.) § 441. Compare Runnels v. State, 28 Ark. 121 (1873). * See Hudspeth v. State, 50 Ark. 534 (1888) ; s.c. 9 S. W. Rep. 1 ; Bailey V. State, 26 Tex. App. 706 (1887) ; s.c. 9 S. \V. Rep. 270. In a trial for murder, where there is testimony of accomj)lice, it is not error for the court to refuse to charge the jury that, if they believe that such witness was an accomplice in the crime 'diarged against defendant, they could not convict upon her testimony, unless the crime and defendant's guilt were proven by other evidence. Hud- speth V. State, 50 Ark. •534; s.c. 9 S. W. Rep. 1. Evidence that a conspiracy was entered into by defendant and others to kill deceased, for which they had a motive ; that, according to the testi- n)ony of an accomplice, defendant procured a pistol, waylaid and shot 558 HOMICIDE. [chap. XXIII. be sufficient to support a conviction; but in many of the states this rule has been changed by statute ; ^ and the general rule in this country now is that the uncorroborated evidence of an accomplice is not sufficient to sustain a conviction.^ Such evidence is to be received with great caution, and should be considered in the light of the circumstances under whicli it is given, the situation of the witness, and his temptations to swear falsely.^ It is not necessary that the corroborative deceased at night, and dragged his body out of the road, which was cor- roborated by proof of defendant's clothing, pools of blood, and other facts ; that defendant denied a few moments after tliat he heard the shots fired ; that he left home the following morning for another country, is suffi- cient to sustain a conviction of mur- der in the first degree. Bailey r. State, 26 Tex. App. 700 (1887) ; 9 S. W. Rep. 270. 1 Lumpkin r. State, 68 Ala. 56 (1880); Middlctnn v. State, 52 Ga. 627 (1874) ; Childers v. State, 52 Ga. 106 (1874) ; Bowling v. Common- wealth, 79 Ky. 004 (1881) ; People v. Ryland, 28 Hun (N. Y.) 568 (1883) ; State V. Odell, 8 Oreg. 30 (1879) ; Hannahan v. State, 7 Tex. App. 664 (1880) ; Myers v. State, 7 Tex. App. 640 (1880) ; Heath v. State, 7 Tex. App. 404 (1880). 2 Lumpkin v. State, 08 Ala. 56 (1880) ; Marler v. State, 67 Ala. 55 (1880) ; s.c. 08 Ala. 580 (1881) ; Flan- agin V. State, 25 Ark. 92 (1867); State V. Williamson, 42 Conn. 261 (1861); State v. Stebbins, 29 Conn. 463 (1861) ; State v. Wolcott, 21 Conn. 272 (1851) ; Sumpter v. State, 11 Fla. 247 (1867) ; Powers v. State, 44 Ga. 209 (1871) ; Collins v. People, 98 111. 584 (1881); s.c. 38 Am. Rep. 105; Earll V. People, 73 111. 329 (1874) ; Cross V. People, 47 111. 152 (1868) ; Ulmer v. State, 14 Ind. 52 (1859) ; State V. Moran, 34 Iowa, 453 (1872) ; State V. Thornton, 20 Iowa, 79 (1868) ; State V. Schlagel, 19 Iowa, 169 (1865) ; State i'. Kcllerman,14 Kan. 135 (1875) ; Craft 1-. State, 3 Kan. 450 (1866) ; Craft V. Commonwealth, 80 Ky. 349 (1882) ; Bowling v. Commonwealth, 79 Ky. 604 (1881) ; State v. Bayonne, 23 La. An. 78 (1871); Hamilton v. People, 29 Mich. 173 (1874) ; State V. Litchfield, 58 Me. 267 (1870) ; State V. Cunningham, 31 Me. 355 (1850) ; Commonwealth v. Holmes, 127 Mass. 424 (1879) ; s.c. 34 Am. Rep. 391 ; Commonwealth v. Scott, 123 Mass. 222 (1877) ; Commonwealth v. Snow, 111 Mass. 411 (1873) ; Commonwealth V. Price, 76 Mass. (10 Gray) 472 (1858) ; Commonwealth v. Bosworth, 39 Mass. (22 Pick.) 397 (1839) ; Peo- ple V. Schweitzer, 23 Mich. 301 (1871) ; People V. Jenness, 5 Mich. 305 (1858) ; Hughes V. State, 58 Miss. 355 (1880) ; Fitzcox V. State, 52 Miss. 923 (1877) ; White V. State, 52 Miss. 210 (1870) ; George v. State, 39 Miss. 570 (1800) ; State V.Jones, 04 Mo. 391 (1877); State V.Watson, 31 Mo. 301 (1801); State V. Hyer, 39 N. J. L. (10 Vr.) 598 (1877) ; Linsday v. People, 63 N. Y. 143 (1875) ; People v. Evans, 40 N. Y. 1 (1809) ; Dunn v. People, 29 N. Y. 523 (1804) ; People v. Costello, 1 Den. (N. Y.) 83 (1845) ; Coates v. People, 4 Park. Cr. Cas. (N. Y.) 002 (1800) ; State V. Holland, 83 N. C. 024 (1880) ; s.c. 35 Am. Rep. 587 ; Allen v. State, 10 Ohio St. 287 (1859); Carroll v. Commonwealth, 84 Pa. St. 107 (1877) ; State V. Brown, 3 Strobh. (S. C.) L. 508 (1849) ; Harrison v. State, 17 Tex. App. 442 (188,5); ZoUicoffer c. State, 10 Tex. App. 312 (1885); State v. Howard, 32 Vt. 380 (1859); Brown V. Commonwealth, 2 Leigh (Va.) 709 (1830) ; Whart. Cr. Ev. § 441. ^ See George v. State, 39 Miss. 570 (1800) ; State v. Walker, 98 Mo. 95 (1888); s.c. 9 S. W. Rep. 047; Wil- SEC. 512.] WEIGHT AND SUFFICIENCY. 559 evidence .should be such of itself as to warrant a conviction ; ^ but it must be evidence tending to connect the accused with the commission of the offence.^ Sec. 511. Proving self-defence. — The question as to the sufficiency of evidence adduced to prove that the homicide was committed in self-defence, is one to be determined by the jury in each particular case. But it may be generally stated that the defendant need not show either beyond a reasonable doubt or by a preponderance of proof that he killed the deceased in self-defence ; it is sufficient if the evi- dence to that effect raises a reasonable doubt in the minds of the jury.^ Sec. 512. Proving alibi.* — Where the defendant seek to prove an alibi., he need not do more than raise a reasonable doubt in the minds of the jurors whether he is the slayer,^ and evidence tending to show an alibi is proper to go to the jur}^ without regard to its probable weight or sufficiency, liams V. State, 15 Tex. App. 401 (1884). An instruction that the testimony of accomplices should be carefully scrutinized, and that unless corrobo- rated by other witnesses, especially as to the identity of the accused as the person against whom the accomplices have testified, such testimony is suffi- cient to convict, is correct; as such an instruction sufficiently presents the necessity for corroboration upon the question of identity. State v. Walker, 98 Mo. 98 (1888) ; s.c. 9 S. W. Rep. 647. 1 Lumpkin v. State, 08 Ala. 56 (1880) ; Marler v. State, 67 Ala. 55 (1880) ; Lockett v. State, 63 Ala. 5 (1879) ; Smith v. State, 59 Ala. 104 (1887) ; State v. Stebbins, 20 Conn. 46.3 (1861) ; Partee v. State, 67 Ga. 570 (1881) ; State v. Russell, 33 La. An. 135 (1881); State v. Litchfield, 58 Me. 267 (1870) ; Commonwealth V. Hayes, 140 Mass. .366 (1886) ; s.c. 5 N. E. Rep. 264; Commonwealth v. Bosworth, 39 Mass. (22 Pick.) 397 (18.39) ; State v. Watson, 31 Mo. 361 (1861); People v. Costello, 1 Den. (N. Y.) 83 (1845) ; Watson v. Com- monwealth, 95 Pa. St. 418 (1880) ; State V. Potter, 42 Vt. 495 (1869). Compare State v. Allen, 57 la. 431 (1881); People v. Evans, 40 N. Y. 1 (1869) ; United States v. Harries, 2 Bond. C. C. 311 (1869). 2 Marler v. State, 67 Ala. .55 (1880); State I'. Allen, -57 Iowa, 431 (1881) ; State V. Hennessey, 55 Iowa, 299 (1880) ; State v. Thornton, 26 Iowa, 80 (1868) ; Commonwealth v. Holmes, 127 Mass. 424 (1879) ; s.c. 34 Am. Rep. 391 ; State v. Hyer, 39 N. J. L. (10 Vr.) 598 (1877) ; People v. Court- ney, 28 Hun (N. Y.) 589 (1883) ; Peo- ple V. Davis, 21 Wend. (N. Y.) 309 (1839) ; Watson v. Commonwealth, 95 Pa. St. 418 (1880) ; Kilrow r. Com- monwealth, 39 Pa. St. 480 (1879); Coleman v. State, 44 Tex. 109 (1877) ; Cohea v. State, 11 Tex. App. 622. 3 State r. Porter, 34 Iowa, 131 (1871) ; s.c. 1 Gr. Cr. Pep. 241 ; Mc- Kenna r. State, 61 Miss. 589 (1884). See Commonwealth r. Drum, 58 Pa. St. 9 (1868). * See post, § 522. 5 French v. State, 12 Ind. 670 (1859) ; .s.c. 74 Am. Dec. 229. 560 HOMICIDE. [chap. XXIII. where the evidence of the crime is circumstantial, or not clear and j^ositive as to the defendant's identity with the slayer. In the case of Turner v. Commonwealth,^ on a trial for murder, an instruction that if the jury did not think an alibi had been proved, "■ the attempt to manufacture evidence was a circumstance which always bore against the person making it." This was plainly erroneous. Where the case rests wholly upon circumstantial evidence, the evidence of the alibi^ though not clear, should be submitted to the jury as a matter of de- fence. Sec. 513. Proving insanity. — The question as to the sufficiency of the proof of insanity which must be adduced, and as to the effect which it must produce on tlie jury in order to justify a verdict of acquittal, is not universally settled. The adjudications upon the subject may properly be divided into three classes, as follows ; first, it has sometimes been maintained that the defendant has not the burden of proof, and that the presumption of sanity only arises in the absence of all evidence to the contrary ; but that his only duty is to introduce evidence tending to cast uncertainty upon the question and thereby to raise in the minds of the jury a reasonable doubt as to his sanity; and that such reasonable doubt is a sufficient gi'ound for acquittal, unless ovei-come by affirmative proof of his sanity adduced by the prosecution.^ Second, in other states it is the declared 1 86 Pa. St. 54 (1878) ; s.c. 27 Am. State, 37 Miss. 383 (1859) ; Hau-e v. Rep. 083. State, 11 Neb. 537 (1881) ; s.c. 38 Am. 2 See Chase v. People, 40 111. 352 Rep. 375- 10 N. W. Rep. 452; Wright (ISfifi) ; Hopps V. People, 31 111. 385 v. People, 4 Neb. 409 (1876) ; State v. (1863) ; s.c. 83 Am. Dee. 231; Law. Bartlett, 43 N. H. 224 (1861); s.c. 2 Insaii. 444, overruling Fisher r. Peo- Or. Def. 480; State v. Jones, 50 N. H. pie, 23 111. 283 (1800) ; Giwtiq v. State, 369 (1871) ; s.c. 9 Am. Rep. 242; 17 06 Inrl. 94 (1879); s.c. .32 Am. Pop. N. W. Rep. 911 ; 2 Or. Def. 64 ; O'Con- 99; Lnw. Insan. 455; Greenley v. veil v. People, S7 ^.Y.ii77 (ISS2) ; s.c. State, 60 Ind. 141 (1877); Sierrns v. 41 Am. Rep. 379; Brotherton v. People, Slate, 31 Ind. 485 (1869) ; s.c. 99 Am. 75 N. Y. 159 (1878) ; s.c. 3 Am. Or. Dec. 634; Polk r. State, 19 Ind. 170 Rep. 218; People y. Me(^anii, 16 N. Y. (1802); State v. Mahn, 25 Kan. 182 58 (1857); s.c. 69 Am. Dec. 642; Law. (1881) ; State v. Crnwfhrd, 11 Kan. 32 Fnsan. 490; Wa.ffner v. People, 4 Abb. (1873) ; s.c. 2 Gr. Cr. Hep. 638; Law. App. Dec. (N. Y.) 509 (1866) ; Dove Iiisan. 459; State v. Reddick, 7 Kan. v. State, 3 Heisk. (Tenn.) 348 (1872); 144 (1871); C'inninr/hain v. State, 56 s.c. 1 Gr. Cr. Rep. 760; Law. Insan. Miss. 269 (1879); s.c. 31 Am. Rep. 502; Lawless i;. State, 4 Lea (Tenn.) 361); Law. Insan. 470; Russell v. State, 179 (18.")9). 53 Miss. 367 (1876); Newcomb v. In Ciiase v. People, 40 111. 352 SEC. 513.] WEIGHT AND SUFFICIENCY. 5G1 doctrine that insanity must be proved by the defence' beyond a reasonable doubt.^ Third, the more modern doctrine is that the defendant has the burden of proof, yet he may establisli his insanity by a preponderance of evidence, or by any evidence which satisfies the jury that he is insane, thus regarding the same measure of proof necessary as in civil causes. This rule is undoubtedly the law in most of the states at the present time, and is supported by the great weight of authority.^ (1806) tlie court, explaining Hopps v. People, ;31 111. 885 (18(53), say : " What we designed to say in this case was simply this, that sanity is an ingre- dient in the crime as essential as the overt act, and if sanity is wanting there can be no crime, and if the jury entertain a reasonable doubt on the question of insanity, the prisoner is entitled to the benefit of the doubt. We wish to be understood as saying in the case that the burden of proof is on the precaution to prove guilt be- yond a reasonable doubt, whatever the defence may be. If insanity is relied upon, anil evidence given tending to establish that unfortunate condition of tlie mind, and a reasonable well- formed doubt is thereby raised of the sanity of the accused, every principle of justice and humanity demands that the accused shall have the benefit of the doubt. We do not desire to be understood as holding the prosecution to the proof of sanity in any case, but we do hold, where evidence of insanity lias been introduced by the accused, a!id a reasonable doubt of his sanity is thereby created, the accused cannot be convicted of the crime charged. We deem it necessary to say this much in explanation of the ruling in the case of Hopps, as some expres- sions used therein may have a ten- dency to mislead." 1 State V. West, 1 Houst. Cr. Cas. (Del.) 371 (1873) ; State v. Pratt, 1 Houst. Cr. Cas. (Del.) 240 (1807) ; s.c. 2 Cr. Def. 331; State v. Daiiby, 1 Houst. Cr. Cas. (Del.) 166 (1804) ; 's.c. 2 Cr. Def. 327 ; State v. Spencer, 21 36 N. J. L. (1 Zab.) 196 (1846) ; .s.c. 2 Cr. Def. 335; State v. Colemen, 20 S. C. 441 (1883). Compare State v. Martin, 3 Cr. L. Mag. (N. J.) 44 (1881); Graves f. State, 45 N. J. L. (16 Vr.) 347 (1883) ; s.c. 40 Am. Rep. 778. 2 See Ford v. State, 71 Ala. 385; Boswell V. Suite, 63 Ala. 307 (1879) ; s.c. 35 Am. Hep. 20; 2 Cr. Def. 352; State V. Mmier, 2 Ala. 43 (1841) ; s.c. 36 Am. Dec. 398; 2 Cr. Def. .346; Casat V. State, 40 Ark. 511 (1883) ; People V. Myers, 20 Cal. 518 (1862) ; State V. Trout, 74 Iowa, 545 (1888) ; s.c. 38 N. W. Rep. 405; State v. Felter, 32 Iowa, 49 (1871) ; s.c. 2 Cr. Def. 371; Kriel v. Commonwealth, 5 Bush (Ivy.) 363 (1869) ; s.c. 2 Cr. Def. 379; Graham r. Commonwealth, 16 B. Mon. (Ky.) 587 (1855) ; s.c. 2 Cr. Def. 373; State V. Lawrence, 57 Me. 574 (1870) ; s.c. 2 Cr. Def. 386 ; State v. Reidmier, 71 Mo. 173 (1879) ; s.c. 36 Am. Rep. 462; 8 Mo. App. 1 ; 2 Cr. Def. 424; 1 Cr. L. Mag. 456; State v. Simms, 68 Mo. 305 (1878); State v. Smith, 53 Mo. 267 (1873); s.c. 2 Cr. Def. 413; State (,'. Hundley, 46 Mo. 414 (1870) ; s.c. 2 Cr. Def. 417 ; State i-. Klinger, 43 Mo. 127 (1868) ; s.c. 2 Cr. Def. 410; State v. McCoij, 34 Mo. 531 (1864) ; s.c. 86 Am. i)ec. 121 ; 2 Cr. Def. 408; Baldwin v. State, 12 Mo. 223 (1848) ; s.c. 2 Cr. Def. 395 ; Loeff- ner v. State, 10 Ohio St. 599 (1857) ; s.c. 2 Cr. Def. 4.32 ; Graves v. State, 45 N. J. L. (16 Vr.) 347 (1883) ; s.c. 46 Am. Rep. 778; Coi/ley. Commonwealth, 100 Pa. St. 573 (1882) ; s.c. 4 Cr. L. Mng, 7(i ; 45 Am. Rep. 397 ; 2 Cr. Def. 441 ; Meyers v. Commonwealth, 83 Pa. 562 HOMICIDE. [chap. xxiu. Sec. 514. Same — Sufficiency of evidence. — What evi- dence is sufficient to show insanity or hick of sound mind, is usually a question to be determined by the jury according to the circumstances of the particular case, and no one fact or group of facts can be, as a matter of law, conclusive proof of insanity.^ Thus it has been said that an order of a lunacy commission admitting the prisoner to an insane asylum is not conclusive of his insanity on a trial for murder.^ In the case of Masscngale v. State ^ the defendant, living on the premises of tlie deceased and employed by him as a laborer, while sowing cotton seed, was told by the deceased that he Avas making too many skips. In half an hour the defendant left his work, went to his house, came back with a pistol, muttering and swearing, and shot the deceased. For months the neighbors noticed a mental change in the defend- ant, and it was rumored that lie was going crazy. The deceased had stated that he thought him crazy, and so said when he saw him with the pistol before the killing. The defendant, after the homicide, remained in the vicinity from ten o'clock in the morning and at night went to his house and went to bed. The court held that from the fact that there was neitlier motive, threats, nor express malice, and, from all the circumstances, the defence of insanity was sustained. But in the case of State v. George,'* evidence that defendant had been, for some four years, subject to irregular epileptic fits of greater or less duration, was held not sufficient evi- dence of insanity to relieve him from liability for homicide. St. 131 (1870); s.c. 2 Cr. Dcf. 340; Law. Insaii. 835; Clarke v. Stato, 8 Brown v. Commonwealth, 78 Pa. St. Te.N. App. 350 (1880); State v. Cole- 122 (1875); Ortwein v. Commomvealt/i, man, 20 S. C. 441 (1883). 76 Pa. St. 414 (1874); s.c. 18 Am. i See Goodwin i'. State, 9«) Ind. 550 Rep. 420 ; 1 Am. Cr. Kep. 297 ; 2 Cr. (1884) ; Guetig r. State, 06 Ind. 04 Def. 438 ; Carter v. Stale, 12 Tex. 500 (1879) ; s.c. 32 Am. Rep. 90 ; Law. (1854); s.c. 02 Am. Dec. 539; Law. Insan. 455; State i'. George, 02 Iowa, Insan. 588; Massengale v. State, 24 682 (1883); Massengale v. State, 24 Tex. App. 181 (1888); s.c. 6 S. W. Tex. App. 181 (1888); s.c. S. W. Rep. 35; Smith v. State, 19 Tex. App. Rep. 35. 95 (1880) ; Jones v. State, 13 Tex. -' Goodwin i-. State, 90 Ind. 550 App. 1 (1883) ; Johnson v. State, 10 (1884). Tex. App. 571 (1881); King v. State, « 24 Tex. App. 181 (1888); s.c. 6 9 Tex. App. 515 (1881) ; Webb v. S. VV. Rep. 35. State, 9 Tex. App. 490 (1881) ; s.c. * 62 Iowa, 682. CHAPTER XXIV. EVIDENCE — defendant's GUILT UPON WHOLE EVIDENCE. Sec. 515. Direct evidence. Sec. 510. Circumstantial evidence. Sec. 517. Same — Possession of stolen property. Sec. 518. Same — Establisiiing facts by competent evidence. Sec. 519. Doctrine of reasonable doubt. Sec. 520. Same — Proof of material facts charged — Instructions. Sec. 521. Same — The " Anarchists' Case." Sec. 522. Same — Proving a//i('. Sec. 515. Direct evidence. — In cases of homicide, espe- cially those involving the life of the person charged, it is always more satisfactory if the guilt of the defendant is established Ijy the testimony of eyewitnesses to the act or acts causing death, or to other acts or occurrences showing the defendant's guilt. But direct evidence as well as circum- stantial may be unsatisfactory ; and it is solely and exclu- sively for the jury to weigh, and to determine its credibility and its sufficiency as best they may, taking into consideration anything which may aid them in arriving at a satisfactory conclusion, or supply to them the criterion or standard by which to judge. ^ 1 See Cross v. State, 68 Ala. 47G N. C. 469 (1887) ; s.c. 1 S. E. Rep. (1881) ; People v. Goslaw, 78 Cal. :]23 680; People v. Lyons, 110 N. Y. 618 (1887); Weeks v. State, 79 Ga. 36 (1888); s.c. 10 Cr. L. lAJag. 690; 17 (1887); s.c. 8 S. E. Rep. 323; Moon N. E. Rep. 391; People v. Cignarale, r. State, 68 Ga. 687 (1882); Mitchum 110 N. Y. 23 (1888); s.c. 17 N. E. r. State, 11 Ga. 615 (1852) ; West- Rep. 135; People r. Willson, 109 N. Y. brook r. People, 126 111. 81 (1888); 345 (1888), s.c. 16 N. E. Rep. 540; s.c. 18 N. E. Rep. 304 ; Grady v. Alexander ;;. State, 25 Tex. Ajip. 260 People, 125 111. 122 (1888) ; s.c. 16 (1888) ; s.c. 7 S. W. Rep. 867 ; Heard N. E. Rep. 654; Roberts v. Common- v. State, 24 Tex. App. 103 (1888); s.c. wealth, 8 S. W. Rep. (Ky.) 270 ; Pitts 5 S. W. Rep. 846 ; Gibson i'. State, 23 r. State, 43 Miss. 472 (1870) ; State v. Tex. App. 414 (1887) ; s.c. 5 S. W. Jackson, 95 Mo. 627 (1888); s.c. 8 Rep. 314; Holmes v. State, 11 Tex. S. W. Rep. 749; Territory v. Adolf- App. 223 (1882); Kemp v. State, 11 son, 5 Mont. Tr. 237 (1884); s.c. 5 Tex. App. 174 (1882). Pac. Rep. 254; State v. Jones, 97 563 564 HOMICIDE. [chap. XXIV. It is not necessary, as a matter of law, that the testimony of a single eyewitness to the crime be corroborated ; ^ but where the life or liberty of the defendant is made to depend upon the unsupported assertion of a single person, great care should be exercised in the consideration of such evidence.^ Sec. 516. Circumstantial evidence. — Except as other- wise provided in some jurisdictions as to proof of the corpus delicti^ circumstantial evidence may constitute proof sufficient to authorize a conviction for homicide even where it involves the life of the person charged, but it should always be received and weighed with great caution, and should only be accepted as conclusive where it excludes all hypotheses inconsistent with the theory of the defendant's guilt, and establishes it to a reasonable certainty." Thus two boys, each with a dog and 1 McLaiu V. State, 99 Fa. St. 86 (1881). In People v. WiUson, 109 N. Y. 345 (1888); s.c. 10 N. E. Rep. 540, it appeared that defendant liad lived unhappily with his wife, and had threatened her life; that he was in- fatuated with another woman, and after being witli her until two o'clock one morning went directly home, and shortly afterwards returned in eager haste, and informed her of his wife's death. The wife had been in good health, and an autopsy pointed to death from asphyxia. A witness of unimpeached character testified that defendant confessed to him that he had suffocated his wife. Held, that a verdict of murder in the first degree was not against the weiglit of evi- dence. Wiiere on a trial for murder, one witness testified, " that j)risoner stooped down, and as witness heard a rattling on the floor and did not see the knife afterwards, he sujjposed that prisoner picked it up. Prisoner rose with a six-barrelled pistol in iiis hand, presented it at the breast of de- ceased, not more than six inches dis- tant, took deliberate aim, long enough to count ten or fifteen, before he fii-eil. He fire2 Gratt. (\^t.) 912 (1879) ; Miller r. Territory, 3 Wash. Tr. -554 (1888); s.c. 19 Pac. IRep. 50; Timmerman v. Territory, 3 Wash. Tr. 445 (1888) ; s.c. 17 Pac. Rep. 624 ; Leonard i\ Territory, 2 Wash. Tr. 381 (1885) ; s.c. 7 Pac. Rep. 872. In a trial for murder, it appeared that defendant and others with de- ceased were seen quarrelling in the street; that soon afterwards deceased fell with a gash in his neck, from which he died ; that the next morning blood was found on defendant's hands and clotlies. Held, that the evidence was sufficient to go to the jury. State V. Johnson, 37 Minn. 493 (1887). In Watt r. People, 126 111. 9 (1888) ; s.c. 18 N. E. Rep. 340, the deceased, an express messenger on a railroad car (No. 18), was murdered somewhere between Joliet and Morris. Defend- ant W. was.acting as baggage-man on car No. 34, and defendant S. as rear brakeman. The two cars were next to the engine. Before the train started defendants were seen together in the baggage car in conversation. The doors of the cars could be opened from the inside by turning a knob, but from the outside only by a key. W. stated that while making out his report he heard a step behind him, and saw a man pointing a revolver at his head, who commanded him not to move ; that he then heard the break- ing of glass in the transom in the roof of the car, and saw a man's hand, holding a revolver, pointing down through; that he sat still until the train reached Morris, when he dis- covered tiiat both the robbers had disappeared, whereupon he gave the alarm; that he did not hear the man go in or out. The safe in the express car was found to be opened by means of a key taken from the deceased, and robbedof §21,000. In the closet of the passenger car, where S. was prin- cipally employed, was found a piece of one of the cancelled vouchers which were in the safe at the time. The defendants had no means except their wages, but soon after the robbery they changed their st\'le of living, and in- dulged in many extravagances out of keeping with their visible means. To explain this they claimed to have re- ceived large sums of money from their relatives. S. was shown to have paid out a considerable number of $50 and .$100 bills, which were proved to be the identical bills stolen from the express compan}'. It was proved that W. had cautioned S. to be careful how he spent his money, as people were beginning to suspect them. The evidence, though entirely circumstan- tial, was held sufficient to support a verdict finding both defendants guilty of the murder. But a mere threat to kill another is insufficient of itself to warrant a conviction of murder, although the killing followed soon after the threat, 5G6 HOMICIDE. [chap, XXIV. with the back of his head shot almost away, and under cir- cumstances wholly precluding the theory of suicide. His dog Avas also found near by shot dead. A verdict of guilty of murder against the elder boy was justified by the evidence.^ In People v. Beckwith ^ there was evidence that the deceased was approaching the defendant's cabin the last time he was seen alive ; that the defendant was soon afterwards found burning meat, which he said was pork rinds ; that the defend- ant fled from his cabin ; that a body cut into pieces and par- tially burned, an axe covered with hair the color of that of the deceased, and clothes like his were found in the cabin ; that the defendant made voluntary expressions indicating that the deceased met his death in the cabin, is sufficient to support a verdict of guilty. In the case of Sutton v. Com- monwealth 3 the defendant and an associate were recognized though disguised, lurking near, and going towards the home of the deceased, avoiding the road, and inquired for the deceased; the defendant being armed with a rifle. They were again recognized by the deceased's wife and mother hiding in the bushes near the house, and were further identi- fied by peculiar tracks and a heel-plate on the defendant's and no otlier perpetrator of the crime is disclosed. Jones i'. State, 57 Miss. 684 (1880). And evidence tiiat de- fendant had a motive for killing deceased; that a month before the killing he had threatened deceased's father; that previous to the killing he liad in his possession a gun, and sub- sequent to the killing a pistol, vvhicli, from the character of the wounds, and tlie balls and sliot picked up on the scene might liave been used in the killing, will not support a verdict of murder. Hogan v. State, 13 Tox. App. 319 (1883). In Olivaries v. State, 23 Tex. App. 305 (1887) ; s.c. 4 S. W. Rep. 903, the evidence showed that at the time of her death deceased was licavy witii cliild ; that her body showed marks of a severe beating ; tliat her husband, the defendant, was jealous of lier, re- fusecl to emi)loy a physician for her, swore at her on her death-bed, aiiost mor- tem examination, and no analysis of tlie contents of the stomach, or of tlie vessel which contained the liquor ad- ministered, and whicli was said to con- tain poison. There was no proof that tlie accused administered tlie liquor, or that he knew tliat it contained poison, nor was any motive or provo- cation shown. The court Iicld that a verdict of guilty would be set aside, and a new trial granted. Hatchett r. Commonwealth, 70 Va. 1020 (1882). 1 Davis r. State, 74 Ga. 869 (1885). 2 108 N. Y. 67 (1888) ; s.c. 15 N. E. Rep. 53. 8 7 S. E. Rep. (Va.) 323. SEC. 516.] GULLT UPON WHOLE EVIDENCE. 567 boot. A few moments after being so seen the deceased was shot by two rifles from the bushes. The defendant fled to Illinois, and was there captured, and his associate's where- abouts was unknown at the time of the trial. There was evidence to impeach and contradict tlie state's witnesses and to show the defendant's good character, but the court held that the evidence justitied a conviction of murder in the first degree. In Miller v. Territorv,^ on a trial for murder, the evidence, chiefly circumstantial, showed that the two victims, being on their way to Seattle in a boat in the early morning, were shot, and their bodies sunk in the lake ; that one of the bodies was robbed ; that the gunshots were heard from that direction about seven o'clock in the morning ; that their boat was found beached at a point three miles distant. It appeared that the defendant left his home at eight o'clock that morning, and arrived at Seattle shortly after ten o'clock in the forenoon ; that it was hardly possible for him to have committed the the crime and have arrived in Seattle before one o'clock in the afternoon ; that he had a black boat, and that some person was seen from a distance in a black or dark boat on that morning going from where the bodies were found towards the defendant's house. It also appeared that the defendant owned a Winchester rifle, with which the shooting might have been done. None of the stolen property was traced to the defendant's possession. The only evidence as to motives was that one of the victims and the defendant had been sub- poenaed to testify before the grand jury in Seattle that morn- ing, presumably concerning a charge against the defendant's son, about which the defendant showed great anxiety. No threats were shown. The defendant, an ignorant, illiterate man, when arrested, displayed some agitation. He was more agitated when taken by the sheriff, wlio maintained towards him a hostile and threatening attitude, to the scene of the murder. When taken into the presence of the dead bodies at the undertaker's, and asked b}^ the sheriff, " How do you feel in the presence of the evidence of your hellish crime ? " he looked away and breathed hard. The court held that the evidence was insufficient to support a verdict of guilty. J 3 Wash. Tr. 554 (1888) ; s.c. 19 Pac. Rep. 50. 568 HOMICIDE. [chap. XXIV. Sec. 517. Same — Possession of stolen pi'operty. — Iri those cases where murder is accompanied with robbery, pos- session of the fruits of the crime is of great weight in estab- lishing proof of murder.^ Thus in the case of Poe v. State,^ on a trial for murder committed by persons engaged at the time in rol)bing a store, there was evidence that one of the two defendants was seen on the night of the murder going in the direction of the store, dressed differently from what he usually dressed, and that he said he was going to see some loose women, who disappeared after the murder ; that both of them were seen the next morning with a gun and saddle-bags near the house of the mother of one of them, and told the witness not to tell that he had seen them ; that they disap- peared after the murder, and were found with some of the stolen articles in their possessicui. One of them did not attempt to prove his whereabouts on the night of the murder, and the other's evidence on that point was very unsatisfac- tory. The court held that upon this and other circumstantial evidence, the jury were justified in returning a verdict of guilty. Sec. 518. Same — Establishing facts by competent evi- dence. — It has been well said that each fact in the chain of facts from which the main fact in issue is to be inferred must be proved by competent evidence and by the same weight of evidence as if each one were the main fact in issue ; ^ that the evidence is wholly circumstantial does not necessitate proof of a motive in the defendant for the commission of the homicide ; * and that it requires that every single or separate fact or cir- cumstance shown shall be entirely consistent with every other, if all the evidence taken together proves the defend- ant's guilt beyond a reasonable doubt.^ 1 Williams v. Commonvvealtli, 29 to B's death A had no means; that I'a. St. 102 (1857) ; Poe v. State, 10 A told false and contradictor}' stories Lea (Tenn.) (57;} (1882). to those who inquired about B. Held, A and B, brotliers. went liuiitin<( tliat a verdict of murder in the first together. B was found dead, shot dejjree would not be set aside. State in the back of the head. It was v. Anderson, 10 Oreg. 448 (1882). proved that A immediately rifled H's - 10 Lea (Tenn.) (17:) (1882). pockets, in which was a considerable ^ See Harrison r. State, G Te.v. App. sum of money, as A knew; that A 42 (187!)). hastily possessed himself of all B's * Green r. State, 38 Ark. o04 (1881). portable effects, which were consider- ^ Timmerman r. Territory, 3 Wash. able, and fled the country; that prior Tr. 445 (1888) ; s.c. 17 Pac. Rep. ()24. SEC. 519.] GUILT UPON WHOLE EVIDP:NCE. 5G9 Sec. 519. Doctrine of reasonable doubt. — Before the defendant can be convicted for the commission of a homicide, the Jur}^ must be satisfied of his guilt of the crime of which they propose to convict liini, beyond a reasonable doubt.^ 1 See Lang v. Slate, 84 Ala. 1 (1887) ; s.c. 5 Am. St. Hop. o24 ; 4 So. Rep. 1!)3; Gunter v. State, 8:] Ala. 96 (1887) ; s.c. 10 Cr. L. Mag. 428 ; -3 So. Kep. 600; West v. State, 76 Ala. 98 (1884); Ford v. State, 71 Ala. 385 (1882) ; s.c. 5 Cr. L. Mag. 32 ; Cross r. State, 68 Ala. 476 (1880; Boswell V. State, 63 Ala. 307 (1879) ; s.c. 35 Am. Rep. 20; Law. Iiisan. 352 ; Mose V. State, .36 Ala. 211 (1860); State v. Stephen, 15 Ala. 534 (1849); Huds- peth V. State, 50 Ark. 534 (1888); s.c. 9 S.W. Rep. 1 ; Overman v. State, 49 Ark. 364 (1887) ; s.c. 5 S. W. Rep. 588; Green v. State, -38 Ark. 304 (1881) ; People v. Goslaw, 73 Cal.323 (1887) ; s.c. 14 Pac. Rej). 788; People V. Woody, 45 Cal. 289 (1873) ; People V. Ah Fung, 16 Cal. 137 (1860) ; Ter- ritory V. Bannigan, 1 Dak. 432 (1877) ; Bond V. State, 21 Fla. 738 (1886) ; Weeks v. State, 79 Ga. 36 (1887) ; s.c. 3 S. E. Rep. 323 ; Rickerson v. State, 78 Ga. 15 (1886) ; s.c. 1 S. E. Rep. 178 ; Davis v. State, 74 Ga. 869 (1885) ; Marshall t-. State, 74 Ga. 26 (1884) ; Moon V. State, 68 Ga. 687 (1882) ; Long ;;. State, 38 Ga. 491 (1868) ; Mitchum V. State, 11 Ga. 615 (1852) ; Watt v. People, 126 111. 9 (1888) ; s.c. 18 N. E. Rep. 340 ; Grady v. People, 125 111. 122 (1888) ; s.c. 16 N. E. Rep. 654 ; Spies V. People (Anarchists' Case), 122 111. 1 (1887) ; s.c. 3 Am. St. Rep, 320; 6 Am. Cr. Rep. 570; 9 Cr. L. Mag. 829 ; 12 N. E. Rep. 865 ; 17 N. E. Rep. 898; Ritzman v. People, 110 111. .362 (1884); s.c. 4 Am. Cr. Rep. 403; Swigar v. People, 109 111. 272 (1884) ; Otmer v. People, 76 111. 149 (1875) ; Guetig V. Slate, 66 Ind. 94 (1879) ; s.c. 32 Am. Rep. 99; Schusler v. State, 29 Ind. 394 (1868) ; Polk v. State, 19 Ind. 170 (1862) ; French v. State, 12 Ind. 670 (1859); State v. Trout, 74 Iowa, 545 (1888) ; s.c. 38 N. W. Rep. 405; State v. Smith, 73 Iowa, 32 (1887) ; s.c. 34 N. W. Rep. 597; State V. Clouser, 69 Iowa, 313 (1886) ; State V. George, 62 Iowa, 682 (1883) ; State V. Porter, 34 Iowa, 131 (1871); s.c. 1 Gr. Cr. Rep. 241 ; State v. Ostrander, 18 Iowa, 435 (1865) ; Tweedy r. State, 5 Iowa, 433 (1857) ; Craft v. State, 3 Kan. 450 (186(i) ; Home v. State, 1 Kan. 42 (18(52) ; Commonwealth v. Cozine (Ky.), 9 S. W. Rep. 289; Roberts v. Connnonwealth (Ky.), 8 S. W. Rep. 270; Ruberts v. Common- wealth (Ky.), 7 S. W. Rep. 401; Payne v. Commonwealth, 1 Met. (Ky.) 370 (1858); Commonwealtii v. Robin- son, 146 Mass. 571 (1888) ; s.c. 10 Cr. L. Mag. 544; 16 N. E. Rep. 452; Conimonirealth v. Webster, 59 Mass. (5 Cush.) 295 (1850); s.c. .52 Am. Dec. 711 ; State v. Johnson, 37 Minn. 493 (1887); s.c. 35 N. W. Rep. 373; McKenna v. State,61 Miss. 589 (1884) ; Hawthorne v. State, 58 Miss. 778 (1881) ; Jones v. State, -57 Miss. 684 (1880) ; Kendrick r. State, 55 Miss. 436 (1877) ; Pitts v. State, 43 Miss. 472 (1870) ; George v. State, 39 Miss. 570(1860) ; Riggsr. State, 30 Miss. 635 (1856); State 'i-. Walker, 98 Mo. 95 (1888) ; s.c. 9 S. W. Rep. 647 ; State V. Anderson, 86 Mo. 309 (1885) ; State r. Simms, 68 Mo. 305 (1878); State v. Schoenwald, 31 Mo. 147 (1860) ; State r. Nueslein, 25 Mo. Ill (1857); Ter- ritory r. Clayton, 8 Mont. Tr.l (1888) ; s.c. 19 Pac. Rep. 293 ; Territory v. Adolfson, 5 Mont. Tr. 237 (1884); s.c. 5 Pac. Rep. 254 ; Territory v. Tun- nell, 4 Mont. Tr. 148 (1881) ; s.c. 1 Pac. Rep. 742 ; Territory v. Edmon- son, 4 Mont. Tr. 141 (1881) ; s.c. 1 Pac. Rep. 738; Caseij v. State, 20 Neb. 138 (1886) ; s.c. 'S Cr. L. Mag. 597; 29 N. W. Rep. 264 ; Brad- shaw r. State, 17 Neb. 147 (1885) ; s.c. 22 N. W. Rep. .361 ; 5 Am. Cr. Rep. 499 ; State v. McCluer, 5 Nev. 132 (1869); People v. Reich, 110 670 HOMICIDE. [chap. XXIV. The term " reasonable doubt" does not mean every vague or conjectural doubt, but it is a substantial doubt — a reason- able hypothesis — arising from the evidence, or a lack of evidence, inconsistent witli the theory of defendant's guilt.^ N. Y. 600 (1888) ; s.c. 18 N. E. Rep. 104; People v. Lyons, 110 N. Y. 018 (1888); s.c. 10 Cr. L. Mag, 690; 17 N. E. Rep. 891 ; People v. Cignarale, 110 N. Y. 23 (1888) ; s.c. 17 N. E. Rep. 135; People v. VVillson, 109 N. Y. 345 (1888); s.c. 16 N. E. Rep. 540; People V. Beckwitb, 108 N. Y. 67 (1888); 15 N. E. Rep. 5:!; Brvlberton V. People,!^ N.Y. 159 (1878) ; s.c. Am. Cr. Rep. 218; Gonlon v. People, 33 N. Y. 501 (1865); Yates v. People, ,32 N. Y. 509 (1805) ; Stepliens v. People, 4 Park. Cr. Cas. (N. Y.) 396 (1859) ; State v. Brewer, 98 N. C. 007 (1887); s.c. 3 S. E. Rep. 819; State y. Jones, 97 N. C. 469 (1887); s.c. 1 S. E. Rep. 680; State v. Harrison, 5 Jones (N. C.) L. 115 (1857) ; State v. Anderson, 10 Oreg. 448 (1882) ; Tif- fany )'. Commonwealtli, 121 Pa. St. 105 (1888); s.c. 15 Ati. Rep. 462; McMeen ;'. Commonwealth, 114 Pa. St. 300 (1886) ; s.c. 9 Atl. Rep. 878; McLain v. Commonwealth, 99 Pa. St. 86 (1881) ; Meyers v. Commonwealth, 83 Pa. St. 131 (1870) ; Ortwein v. Commonwealth, 76 Pa. St. 414 (1875) ; s.c. 18 Am. Rep. 420; 1 Am. Cr. Rep. 297 ; Law. Insan. 438 ; Commonwealth V. Drum, 58 Pa. St. 9 (1868); Warren V. Commonwealth, 37 Pa. St. 45 (1860); s.c. Law. Insan. 809; Kilpatrifk c. Commonwealth, 31 Pa. St. 198 (1858); Williams v. Commonwealth, 29 Pa. St. 102 (1857); Commonwealth v. Harman, 4 Pa. St. 209 (1840) ; Henry V. State, 11 Humph. (Tenn.) 224 (1850) ; Poe r. State, 10 Lea (Tenn.) 673 (1882); Alexander v. State, 25 Te.x. App. 260 (1888) ; s.c. 7 S. W. Rep. 867 ; Ballen v. SUite, 2(5 Tex. App. 706 (1887) '; s.c. 8 Am. St. Rep. 438; 9 S. W. Rep. 270; Rather v. State, 25 Tex. App. 623 (188H) ; s.c. 9 S. W. Rep. 69 ; Massengale r. State, 24 Tex. App. 181 (1888) ; s.c. 6 S. W. Rep. 35 ; Heard v. State, 24 Tex. App. 103 (1888) ; s.c. 5 S. W. Rep. 846 ; Scott V. State, 23 Tex. App. 452 (1887); s.c. 5 S. W. Rep. 189; Gib- son V. State, 23 Tex. App. 414 (1887); s.c. 5 S. W. Rep. 314; Olivares v. State, 23 Tex. App. 305 (1887) ; s.c. 4 S. W. Rep. 903; Rowlett v. State, 23 Tex. .A.pp. 191 (1887) ; s.c. 4 S. W. Rep. 582; Kunde v. State, 22 Tex. App. 65 (1887); s.c. 3 S. W. Rep. 325; Smith v. State, 19 Tex. App. 95 (1886) ; Lane v. State, 19 Tex. 54 (1886); Jolmsonv. State, 18Tex. App. 576 (1886); Williams r. State, 15 Tex. App. 401 (1884) ; Gomez v. State, 15 Tex. App. 327 (1884) ; Hogan V. State, 13 Tex. App. 319 (1883) ; Scott V. State, 12 Tex. App. 594 (1883) ; Pogne V. State, 12 Tex. App. 283 (1883) ; Holmes v. State, 11 Tex. App. 223 (1882) ; Kemp v. State, 11 Tex. App. 174 (1882); King v. State, 9 Tex. App. 515 (1881) ; Webb v. State, 9 Tex. App. 490 (1881); s.c. Law. Insan. 835; Jackson v. State, 9 Tex. App. 114 (1881); Harrison v. State, 6 Tex. App. 42 (1879); Browne v. State, 4 Tex. App. 275 (1879) ; Sutton ;•. Commonwealth (Va.), 7 S. E. Rep. 323; Russell r. Commonwealth, 78 Va. 400 (1884) ; Ilatchett v. Common- wealth, 76 Va. 1026 (1882) ; Dean v. Commonwealth, .32 Gratt. (Va.) 912 (1879); Miller ;;. Territory, 3 Wash. Tr. 554 (1888) ; s.c. 19 Pac. Rep. 50; \ Timmerman v. Territory, 3 Wash. Tr. 445 (1888); s.c. 17 Pac. Rep. 624; Leonard v. Territory, 2 Wasli. Tr. 381 (1885); s.c. 7 Pac. Rep. 872; Terri- tory V. Manton, 8 Mont.Tr. 95 (1888) ; s.c. 14 Pac. Rep. 637. 1 See Lang v. State, 84 Ala. 1 (1887); s.c. 5 Am. St. Rep. 324 ; 4 So. Rep. 193; State v. Stephen, 15 Ala. 534 (1849) ; Territory v. Banni- gan, 1 Dak. 432 (1877) ; Long v. State, 38 Ga. 491 (1868) ; Spiex v. People (Anarchists' Case), 122 111. 1 SEC. 520.] GUILT UPON WHOLE EVIDENCE. 571 It should be accurately defined to the jury in each case in language not to be misunderstood, which conveys that idea ; and a charge that the jury " should be convinced as jurors when they would be convinced as men, and should doubt as jurors when they would doubt as men," has been held to be a correct exposition of the doctrine of reasonable doubt as applied to a criminal prosecution.^ Sec. 520. Same — Proof of material facts charged — Instructions. — Instructions in a murder trial that the jury need not be satisfied beyond a reasonable doubt "of each link in the chain of circumstances relied on to establish the defendant's guilt," but that it is sufficient if, taking the testimony altogether, the jury are satisfied beyond a reason- able doubt that the state had proven "each material fact charged, that defendant is guilty," is correct.^ On an indictment i^r murder, an instruction that " to prove beyond a reasonable doubt that the defendant is guilty does not mean that the state must make the proof by an eye- witness, or to a positive, absolute, mathematical certainty. This latter measure of proof is not required in any case. If, from all the evidence, the jury believe that it is possible, or that it may be, or perhaps, the defendant is not guilty, this degree of uncertainty does not amount to a reasonable doubt, and does not entitle the defendant to an acquittal. All that ' is required is that the jury should, from all the evidence, be- lieve beyond a reasonable doubt that the defendant is guilty; (1887); s.c. 9 Cr. L.Mag. 827; P> Am. 1-32 (1809) ; Brotlierton v. People, 75 St. Rep. 320 ; Am. Cr. Kep. .070 ; N. Y. 159 (1878) ; s.c. 3 Am. Cr. Rep. 12 N. E. Rep. 805 ; 17 N. E. Rep. 898 ; 218 ; McMeen v. Commonwealth, 114 Schusler v. State, 29 Ind. 394 (1808) ; Pa. St. 300 (1886) ; Commonwealth Home V. State, 1 Kan. 42 (1802); «;. Drum, 58 Pa. St. 9 (1808) ; Warren Commonwealth v. Webster, 59 Mass. v. Commonwealth, 37 Pa. St. 45 (5 Cash.) 295 (1850); s.c. 52 Am. (1800); .s.c. Law. Insan. 809; Kil- Dec. 711 ; Kemlrick v. State, 55 Miss, patrick v. Commonwealth, 31 Pa. St. 430 (1877) ; State v. Walker, 98 Mo. 198 (1858) ; Conmionwealtli c. Har- 95 (1888) ; s.c. 9 S. W. Rep. 047 ; man, 4 Pa. St. 209 (181(i). State I'. Anderson, 86 Mo. 309 (1885) ; i See Spies v. People (Anarchists' State V. Schoenwald, 31 Mo. 147 Case), 122 111. 1 (1887) ; s.c. 9 Cr. (1800) ; State i-. Neuslein, 25 Mo. Ill L. Mag. 829; 3 Am. St. Rep. 320; 6 (1857) ; Territory v. Manton, 8 Mont. Am. Cr. Rep. 570 ; 12 N. E. Rep. 805; 95 (1888) ; s.c. 14 Pac. Rep. 037 ; 17 N. E. Rep. 898. Bradshaw v. State, 17 Neb. 147 (1885) ; 2 Bradshaw v. State, 17 Neb. 147 s.c. 5 Am. Cr. Rep. 499 ; 22 N. W. (1885) ; s.c. 5 Am. Cr. Rep. 499. Rep. 301 ; State v. McCluer, 5 Nev. 672 HOMICIDE. [chap. XXIV. and if they so believe, . . . they must find the defendant puilty, although they may also believe, from the evidence, that it may be that he is not guilty, or that it is possible that he is not guilty," is not error.^ But an instruction that " In determining the question of doubt you will act as a prudent, careful business man would act in determining an important matter pertaining to his own affairs," has been held to be erroneous. There must be in the juror's mind an abiding conviction to a moral certainty of the truth of the charge against the accused; such convic- tion as the juror would venture to act upon in matters of the highest concern to himself.^ Sec. 521. Same — "The Anarchists' Case." — In the An- archists' Case ^ the trial court gave the rule as to a reasonable doubt, as affecting the finding of the jury, as follows : " The court instructs the jury, as matter ftf law, that in considering the case the jury are not to go beyond the evidence to hunt up doubts, nor must they entertain such doubts as are merely chimerical or conjectural. A doubt, to justify an acquittal, must be reasonable, and it arises from a candid and impartial investigation of all the evidence in the case ; and unless it is such that, were the same kind of doubt interposed in the graver transactions of life, it would cause a reasonable and prudent man to hesitate and pause, it is insufficient to author- ize a verdict of 'not guilty.' If, after considering all the evidence, you can say you have an abiding conviction of the truth of the charge, you are satisfied beyond a reasonable doubt." The rule, as thus formulated, has repeatedly received the approval of the courts, and is correct. Sec. 522. Same — Proving alibi."* — While the prosecu- tion are required to establish beyond a reasonable doubt the guilt of the defendant, it is not incumbent on the defendant to prove an alibi beyond a reasonable doubt ; and although the evidence offered to establish an alibi falls short of the weight of moral certainty as to the existence of the alibi^ yet, if it 1 Lang V. State, 84 Ala. 1 (1887) ; " 122 111. 1 (1887) ; s.c. 9 Cr. L.j s.c. 5 Am. St. Rep. ?>2i ; 4 So. Rep. Mag. 829 ; 8 Am. St. Rep. -320 ; Am. 193. Cr. Rep. 570 ; 12 N. E. Rep. 805 ; 17J ' Territory v. Bannigan, 1 Uak. 432 N. E. Rep. 898. (1877). * See ante, § 512. SEC. 522.] GUILT UPON WHOLE EVIDENCE. 573 leaves in the minds of the jury such a doubt or uncertainty that, taken l^y itself, they could not find for or against the allhi^ they are bound to carry such doubt into the case of the prosecution, and to array it there as an element of the reason- able doubt beyond which the prosecution must establish guilt.i An aVihi not only goes to the essence of guilt, but it trav- erses one of the material averments of the indictment tliat the defendant did then and there the particular act charged,- and the defendant is entitled as much to the benefit of the doubt raised thereby as to any other doubt raised by the evi- dence ; and if its weight alone, or added to that of any other fact, be sufficient to reduce belief in the minds of the jury as to the defendant's guilt to a reasonable doubt, they must acquit.^ In State v. Fong Ah Sing,* the trial court was requested to instruct the jury that " if they find the defend- ant to have been at another place, as, for instance, in the society's rooms which have been spoken of in the evidence, at the time of the alleged shooting, and if his being there then creates a reasonable doubt of his having been present at the place of the alleged crime at the time of its alleged com- mission, he should have the benefit of that reasonable doubt, and be acquitted." This instruction was refused and on appeal was held to be proper. Wharton says^ to hold, that though the defendant casts reasonable doubt on the averment of his co-operation in the guilty act, he must be convicted unless he established such non-co-operation by a preponderance of proof, is to fall into the error of confounding the burden of proof with the pre- sumption of innocence. Undoubtedly, if the prosecution makes out a case sutficient to secure a verdict of conviction, then the burden is on the defendant to prove his defence. But Avhen his pi'oof is in, then the final qjestion is. Are the essential averments of the indictment proved beyond a rea- 1 People V. Fong Ah Sing, 64 Cal. 40 Iowa, 623 (1877) ; Walker v. State, 253 (1883) ; State v. Howell (Mo.), 14 42 Tex. 360 (1875). S. W. Rep. 4 (1890) ; s.c. 31 Cent. 2 pee Wliart. Cr. Ev. (8th ed.) 333. L. J. 384, affirming State v. Jennings, ^ People r. Fong Ah Sing, 64 Cal. 81 Mo. 185 (1883) ; State v. Lewis, 69 253 (1883). Mo. 92 (1878). See Howard r. State, •* 64 Cal. 253 (1883). 60 Ind. 190 (1875) ; State v. Hardin, & Whart. Cr. Ev. (8th ed.) 333. 574 HOMICIDE. [chap. XXIV. sonable doubt ? And among these essential averments is the defendant's j)articipation in the act charged. It is said in People v. Stone,^ that where the only question in a murder trial is whether the defendant was the person who committed the murder, and three eyewitnesses, who were previously acquainted with the defendant, positively identify him as the murderer, and it is also proved that sliortly before the murder the defendant had had an alterca- tion with the deceased, a judgment of conviction will not be reversed on appeal, although several witnesses swear to an aUbi, and although the witnesses for the prosecution were unintelligent and illiterate. 1 117 N. Y. 480 (1889). CHAPTER XXV. INSTEUCTIO^'S TO THE JURY. Sec. 523. What questions must be submitted by the instruction. Sec. 524. Charging erroneously or iusuffiL-iently. Sec. 525. Instructions as to tiie degree of murder. Sec. 526. Instructions as to manshiugiiter. Sec. 527. Instructions as to excuse or justification. Sec. 528. Instructions as to competency and weight of evidence. Sec. 520. Instructions as to verdict. Sec. 530. Instructions as to punishment. Sec. 5.S1. Repetition of instruction. Sec. 532. Sufficiency of instructions — .\s to form. Sec. 533. Same — Contradictory and misleading instructions. Sec. 534. Same — Using figure of speech. Sec. 535. Same — Instructions as to form of verdict. Sec. 536. Written instructions. Sec. 537. Instruction as to evidence of accomplice. Sec. 538. Instruction as to reasonable doubt and alibi. Sec. 523. What questions must be submitted by the instructions. — On the trial of an indictment for feloniou.s homicide it is the duty of the court to state to the jury the hiw defining the offence with which the defendant is charged, and, if the proof raises any doubt as to the degree of the homicide, the law defining the different grades of homicide, not higher than the grade which the indictment charges.^ No instruction should be given upon the degree of homicide which lacks all proof of its commission .^ Sec. 524. Chargring erroneously or insufficiently. — While it is true, generally, that a failure of the trial court to charge 1 State V. Stephen, 15 Ala. 5.34 2 Washington v. State, 36 Ga. 222 (1849) ; Washington v. State, 36 Ga. (1867) ; Crawford v. State, 12 Ga. 142 222 (1867); Crawford v. State, 12 (1852); State ?;. Stoeckli, 71 Mo. 559 Ga. 142 (18.52) ; Fitzgerold v. People, (1880) ; State v. Kilgore, 70 Mo. 546 37 N. Y. 413 (1868) ; Nelson r. State, (1879); Lindsay v. State, 36 Tex. 2 Swan (Tenn.) 257 (18-52) ; Lindsay 337 (1871) ; Daniels v. State, 24 Tex. V. State, 36 Tex. 337 (1871). 389 (1859). 575 576 HOMICIDE. [chap. XXV. fully, when there is no essential point omitted, or wrongfully charged, it is not error, unless it should appear that the court was asked for further instructions ; still, on the trial of a capital offence, it is error if the court — although expound- ing the law correctly, so far as the charge goes — omit to instruct the jury fully and explicitly on the legal effect of all the circumstances developed on the trial which would tend to determine the character or degree of the prisoner's guilt.^ Sec. 525. Instructions as to the degrree of murder. — Where, in a trial for murder in the lirst degree, it is clearly proven that the defendant killed the deceased intentionally ; that there was no excuse or justification for the killing; that the provocation given by the deceased was slight, it is not a case requiring instructions to be given to the jury defining murder in the second or a lower degree.^ Where the indict- ment charges murder in the first degree, but the evidence leaves a doubt as to the degree, the court should instruct upon the law of both degrees of murder ; however, Avhere the evidence shows clearly and unequivocally that the homicide was not less than murder in the first degree, there is no occa- sion to instruct the jury upon the law of any lesser grade of homicide.^ But where there is any evidence whatever which, if believed, will reduce the crime to murder in the second degree, even though it be given by the defendant himself, he is entitled to an instruction upon the law of murder in the second degree.* In the case of People v. Kelly ^ the defendant was indicted and tried for murder in the first degree in killing one Lutz, from a deliberate and premeditated design to effect his death, and also for killing him while he, the defendant, was engaged 1 Nelson v. State, 2 Swan (Tcnn.) Iiisan. 10; State v. Talbott, 73 Mo. 257 (1852). 347 (1881); State v. Wieners, 66 Mo. ^ State I'. Wieners, 66 Mo. 13 13 (1877) ; State v. riililips, 24 Mo. (1877). 475 (1857) ; O'Connell i'. State, 18 3 See State v. Johnson, 8 Iowa, 525 Tex. 343 (1857) ; May v. State, 22 (1800) ; s.c. 74 Am. Dec. 321 ; State Tex. App. 505 (1887) ; s.c. 3 S. W. r. Wilson, 88 Mo. 13 (1885); State !•. Kep. 781; Washintrton v. State, 1 Ward, 74 Mo. 253 (1881) ; State >: Tex. App. 647 (1877) ; Ilolden v. Kotovsky, 74 Mo. 247 (1881) ; State State, 1 Tex. App. 225 (1877). r. Ellis, 74 Mo. 207 (1881); State r. ■» State y. Banks, 73 Mo. 592 (1881). Erb, 74 Mo. 100 (1881); s.c. Law. ^ 35 Hun, 295 (1885). SEC. 525.] INSTRUCTIONS TO THE JURY. 577 in the commission of a felony. Upon the trial, evidence was given tending to show that on the evening of October tAven- tieth Lutz received ten dollars, being the wages of a week for himself and his son, and the defendant received at the same time from the same person two dollars for his wages ; that at about one o'clock of the morning of the next day the de- fendant rapped at the door of the house where Lutz and his son lived, was admitted by Lutz, and went to bed with Lutz and his son ; that during the night the defendant assaulted Lutz and his son, beating them over the head witli a blunt instrument and inflicting injuries upon Lutz from which he died ; that he took the wages received by Lutz from the pocket of his Avaistcoat, which hung by the side of the bed, and appro- priated them to his own use. The trial court in its charge de- fined the crime of murder in the first degree, but made no men- tion of murder in the second' degree, or of manslaughter, the judge stating that he thought it would confuse the jury to state all the different grades of murder or homicide, and then added: " There is not any opportunity, gentlemen, for you or me to compromise this case in any respect. It is a conviction of murder in the first degree or an absolute acquittal." Upon the defendant's exception to this charge the court said, "Wbat I intended to say to you was that a verdict in this case other than that of guilty or not guilty would not, in my judgment, be borne out by the facts of the case. I say, however, to you, that as a matter of right and power you can bring in a vei^ict of a lesser offence under an indictment charging murdei' in the first degree, and to that extent I modify my charge." He also charged that if they believed the testimony of the son, who related what occurred in the house, that " that alone is sufficient to enable you to find a verdict of guilty in this case." On appeal the court held that, as the taking of the money under the circumstances described did not amount to a felony but only to a larceny, and as the question of pre- meditation and deliberation was, under the circumstances, a question of fact for the jury, that the charge was erroneous ; and that the error Avas not cured by the modification after- wards made of the charge, because, to obviate an erroneous instruction given by the court to the jury upon a material point, the withdrawal must be absolute and be made in such 2,7 578 HOMICIDE. [chap. XXV. explicit terms as to preclude the inference that the jury might have been influenced thereby. Where, however, instructions are given upon the law of murder in the second degree, when unwarranted by the evi- dence, it will not be reversible error in the absence of any showing that the verdict of guilty of murder in the first degree is unjust to defendant :^ nor will such a convic- tion be reversed because such unnecessary instructions were erroneous, the verdict showing them to have been immaterial.^ Where the defendant has been convicted of murder in the second degree, and has obtained a new trial, it is unnecessary for the court to instruct upon the degrees of malice, or upon the law of premeditation and deliberation, as such conviction of murder in the second degree works an acquittal of murder in the first degree ; and a statement by him to the jury to that effect is proper.^ Sec. 526. instructions as to manslaiig-liter. — If, on a trial for murder, there is no evidence upon which the jury can find that the killing was done in the sudden heat of pas- sion, or under other circumstances reducing the crime to manslaughter, it is not error for the court to fail or refuse to instruct the jury upon the law applicable to a reduction of the homicide from the grade of murder to that of man- slaughter.* Thus in State v. Downs,^ where the deceased and the defendant's son had an altercation, and the defendant, with- out warning, stepped up behind the deceased and struck him a blow which killed him, he was not entitled to an instruction 1 State ;;. Talbntt, 73 Mo. 347 (1880); s.c. 3 S. W. Rep. 210; Lum (1881). Com/)are State i'. Pliillips, 24 v. State, 11 Tex. App. 483 (1882); Mo. 475 (18u7). Hill r. State, 11 Tex. App. 450 (1882). 2 State V. Ward, 74 Mo. 253 (1881); It is said in State v. Patton, 12 La. State V. Kotovsky, 74 Mo. 247 (1881); An. 288 (1857), that wliere tlie jury, State V. Ellis, 74 Mo. 207 (1881); in tryinjr an indictment for murder, State!;. Erb, 74 Mo. lOt) (1881); s.c. have the power to find the prisoner Law. Insan. 10. guilty of nianslau_u;hter, it is perti- 2 Pliarr v. State, 10 Tex. App. 485 ncntand riolit forthe juilge to instruct (1881). the jury in the law both of murder * People V. Estrado, 49 Cal. 171 and manslaughter, notwithstanding (1874) ; Dozier v. State, 26 Ga. 156 his counsel chose to assert that the (1858) ; Teal v. State, 22 Ga. 75 only issue for the jury to try was the (1857) ; s.c. 68 Am. Dec. 482 ; State v. sanity of tlie accused. Hose, 92 Mo. 201 (1887) ; s.c. 4 S. W. ^' 91 Mo. 19 (1880) ; s.c. 3 S. W. Rep. 733; State v. Downs, 91 Mo. 19 Rep- 219. SEC. 527.] INSTRUCTIONS TO THE JURY. 579 upon the law of manslaughter in the first degree. But the defendant is entitled to have the law of manslaughter given to the jury, if there is any evidence whatever to which it is applicahle, no matter how weak or insufficient it may appear to the court.^ The law of involuntary manslaughter need not be given where the indictment charges only murder, as a conviction for involuntary manslaughter cannot usually be had, except under an indictment strictly charging the offence.^ In McLaurin v. State,^ a woman with whom the defendant's wife was on bad terms, wliile passing the defendant's house, was attacked by his wife, the latter using only her hands ; the other struck the defendant's wife with an axe handle, by which she was considerably cut, whereupon the defendant, who had taken no part in the struggle, seeing his wife hurt and bleeding, shot and killed the other woman as she was moving off. The court held, that a charge to the jury as to the law of murder only, and a refusal to charge as to the law of manslaughter was erroneous. Sec. 527. Instructions as to excuse on justification. — Where the defendant pleads the necessity of self-defence, or other legal excuse for the homicide, he is entitled to have the jury instructed upon the law relating thereto ; * but where there is no evidence whatever tending to show that the kill- ing Avas done in self-defence or in the reasonable belief of imminent danger to the defendant from deceased, or under other circumstances excusing it, it is proper for the court to ignore the question of self-defence in charging the jury.^ 1 Payne v. Commonwoaltli, 1 Met. * Hindi v. State, 25 Ga. 099 (1858) ; (Ky.) 370 (1858) ; McLaurin v. State, Steinmeyer v. People, 95 III. 383 G4 Miss. 529 (188(5) ; s.c. 1 So. Rep. (1880) ; State v. Sneed, 91 Mo. 255 747; Potter v. State, 85 Tenn. 88 (1887) ; s.c. 4 S. W. Rep. 411 ; Potter (1880); s.c. 1 S. W. Rep. 014; Lis- v. State, 85 Tenn. 88 (1880); s.c. 1 kosski V. State, 23 Tex. App. 105 S. W. Kep. 614; McConncU v. State, (1887) ; s.c. 3 S. W. Rep. 090; Rob- 22 Tex. App. 354 (1880) ; s.c. 58 Am. erts V. State, 23 Tex. App. 170 (1887) ; Rep. 047 ; 3 S. W. Rep. 699; Elliston s.c. 4 S. W. Rep. 879; McLaugiilin r. v. State, 10 Tex. App. 361 (1881); State, 10 Tex. App. 340 (1881). See McLaugiilin v. State, 10 Tex. App. 340 United States v. Armstrong, 2 Curt. (1881); Warren t;. State, 9 Tex. App. C. C. 446 (1855). 619 (1881) ; s.c. 35 Am. Hep. 745. See 2 McWIiirt's Case, 3 Gratt. (Va.) People v. Walter, 1 Idalio, 386 (1871) ; 594 (1846). May v. State, 23 Tex. App. 140(1887); 3 64 Miss. 529 (1886); s.c. 1 So. s.c' 4 S. W. Rep. 591. Kep. 747, 5 Taylor v. State, 48 Ala. 180 580 HOMICIDE. [chap. XXV. In the case of Potter v. State^ on the trial of an indictment for murder, there was proof that the deceased was a quarrel- some, overbearing, and dangerous man, and had made repeated threats against the life of the defendant, some of which had iDeen and some had not been communicated to him. The court omitted to instruct the jury that they might look at the threats to show the state of mind of the defendant, and illustrate his conduct and motive in connection with the other evidence, and to show the animus of the deceased and his motives ; and the defendant did not ask for such an instruction. The court held, that the finding of the jury of murder in the first degree could not negative the existence of a defence which the jury were not properly instructed to consider ; nor would the court, in a case involving the life of a citizen, or his hopeless impris- onment, stand on any nice technicality of requiring the defend- ant to have demanded an instruction, essential to a fair trial, which the law is supposed to guarantee to him without a de- mand; and that the omission was error warranting a reversal. In a recent Texas case''^ the evidence showed that the defendant and the deceased had had a controversy ; that the deceased had abandoned it and the defendant had renewed it in order to have a pretext for killing the deceased. The court said that there was no issue of fact as to the defendant's intent in such renewal, and that it was not necessary for the court to instruct the jury on that point. And it is said in Var- nell V. State ^ that where the evidence tended to show that the deceased sought the defendant after an act of carnal inter- course between the defendant and the deceased's minor dausfhter had been consummated with the dauefhter's consent, and she had gone away, it was error to charge the jury witli respect to the father's right to interfere to prevent the seduc- tion of his daughter, and the defendant's culpability for the killing under such circumstances. (1872) ; Varnell ;;. State, 26 Tex. App. AV. Rep. 411 ; Honeycutt v. State, 8 M (1888) ; s.c. 9 S. W. Kep. (55; Allen Caxt. (Tenn.) 371 (1875). r. State, 24 Tex. App. 216 (1888); ' 85 Tenn. 88 (1886) ; .s.c. 1 S. W. s.c. 6 S. W. Kep. 187. See Epps v. Rep. 614. State, 1!) Ga. 102 (1855) ; Jarrell v. 2 Allen v. State, 24 Tex. App. 216 State, 58 Ind. 293 (1877) ; State v. (1887) ; s.c. 6 S. W. Rep. 187. Sneed, 91 Mo. 552 (1887) ; s.c. 4 S. ^ 26 Tex. App. 56 (1888) ; s.c. 9 S. W. Rep. 65. SEC. 530.] INSTRUCTIONS TO THE JURY. 581 Sec. 528. instructions as to competency and weight of evidence. — On the trial of an indictment for homicide, where an}' part of the testimony which has been adduced has an 'artificial importance given to it by the law, or a presump- tive weight it is the duty of the court to instruct the jury on such and explain the general rule.^ The defendant is always entitled to have the jury clearly instructed as to the doctrine of reasonable doubt ; and where the testimony is entirely circumstantial, the court should state to the jury the rules which regulate the application of circumstantial evi- dence in cases of homicide.^ But that is not necessary where there is any direct proof of the defendant's guilt.^ Where testimony is admitted upon the representation of counsel, that it will subsequently be connected with addi- tional evidence so as to render it material, and the promise is not fulfilled, the court should conclusively direct the jury to exclude such testimony entirely from their consideration.* Sec. 529. instructions as to verdict.^ — It is not essential to the sufficiency of the charge that it should instruct the jury as to the forms of verdicts which may be rendered by them, although it is entirely proper to do so ; but when such instructions are given, they should embrace every verdict which might be rendered in the case, so as to avoid conveying to the minds of the jury any impression as to the opinion of the court as to which of every verdict might or should be rendered.^ Sec. 530. instructions as to punishment. — Where the jury must or may fix the punishment, they should be in- structed as to the proper punishment for all grades of homicide, for any of which they have the right to convict the defendant, and as to the limits of such punishment." In Texas, since the adoption of the new constitution, it is the duty of the district judge, on the trial of an indictment 1 Brown v. State, 23 Tex. 195 * State i'. McDonnell, 32 Vt. 491 (1859). (I860). 2 People V. Lachanais, 32 Cal. 433 ^ See post, § 535. (1867). ^ Williams v. State, 24 Tex. App. 3 McDaniel v. State, 16 Miss. (8 637 (1888) ; s.c. 7 S. W. Rep. 333. Smed. & M.) 401 (1847); s.c. 47 Am. " Marshall v. State, 33 Tex. 664 Dec. 93. (1871). 582 HOMICIDE. [chap. XXV. for murder, to instruct the jury that they have the power to commute the death penalty to imprisonment at hard labor for life ; and if this instruction is omitted, and the accused convicted of murder in the first degree, the case will be reversed and remanded. Sec. 531. Repetition of instruction. — The meaning of a charge is not to be determined by selecting and disconnecting particular sentences and considering them without reference to the context, but all its parts must be considered in connec- tion with each other. Therefore, where the court has once instructed the jury as to the law relating to a particular phase of the crime charged correctly and to the point, it is not bound to repeat such instructions expressly in connection with other ingredients of the crime.^ Sec. 532. Sufficiency of insti-uctions as to form. — No rule can be laid down which prescribes the forms in which each instruction upon trials of indictments for homicide must or may be given, but this depends entirely upon the circum- stances of each particular case, to be determined in the discretion of the court-; it may be generally stated, however, that the language of the instructions, and the form and con- nection in which they are given should not be such as to mislead the jury, but should be clear and unequivocal, and incapable of misinterpretation.^ 1 Stanton v. State, 13 Ark. 317 74 Cal. 642 (1888) ; s.c. 10 Pac. Rep- (1853); Jordan v. State, 10 Tex. 479 510; Feople v. Gonzales, 71 Cal. 5(50 (1853). (1887); s.c. 9 Or. L. Mag. 307; 12 2 See Gunter v. State, 83 Ala. 9G Pac. Hep. 783; People v. Welch, 49 (1887) ; s.c. 10 Cr. L. Mag. 428; 3 Cal. 177 (1874); People v. Best, 39 So. Rep. 600; Pallin v. State, 83 Ala. Cal. 690 (1870); People v. Moore, 8 5(1888); s.c. 3 So. Kep. 525; Brown Cal. 90 (1857); People v. Quincy, V. State, 83 Ala. 33 (1887) ; s.c. 3 So. 8 Cal. 89 (1857) ; Redus v. People, 10 Rep. 857; Amos v. State, 83 Ala. 1 Colo. 208^(1887); s.c. 14 Pac. Rep. (1887); s.c. 3 So. Rep. 749; Williams 323; Blachnan v. Slate, 78 Ga. 592 V. State, 81 Ala. 1 (1886) : s.c. 9 Cr. (1887) ; s.c. 10 Cr. L. Mag. 71 ; 3 L. Mag. 480; 1 So. Rep. 179; Hamp- S. E. Rep. 418; Edwards j;. State, 53 ton j;. State, 45 Ala. 82 (1871); Dill Ga. 428 (1874); Prcssley r. State, V. State, 25 Ala. 15 (1854); Felix v. 19 Ga. 192 (1855); Anderson y. State, State, 18 Ala. 720 (1851); Pierson v. 14 Ga. 709 (1854); Holder v. State, State, 12 Ala. 149 (1847) ; Howard 5 Ga. 441 (1848); Monroe r. State, 5 V. State, 34 Ark. 433 (1879) ; Atkins Ga. 85 (1848) ; Spies v. People (Anar- I,'. State, 16 Ark. 568 (1855) ; People cliists' Case), 122 111. 1 (1887) ; s.c. 9 t;. Williams, 75 Cal. 306 (1888) ; s.c. Cr. L. Mag. 829; 3 Am. St. Rep. 320; 17 Pac. Rep. 211; People v. Giancoli, 6 Am. Cr. Rep. 570; 12 N. E, Rep, SKC. 532.] INSTRUCTIONS TO THE JURY. 588 Thus an instruction to the jury that they "have no right to hold the hiw to be otherwise in any particuLar than as given to them by the court," is not erroneous.^ An instruction 8(5.5; 17 N. E. Rep. 898; Crews v. People, 120 111. .317 (1887); s.c. 11 N. E. Rep. 404; Gaineij v. People, i)7 111. 270 (1881) ; s.c. 37 Am. Rep. 100; Alexaiuler v. People, 00 111. 00 (ISSO) ; B.arnett v. People, 54 111. 325 (l-!70); Miiher r. People, 24 111. 241 (1800); MayfieUl v. State, 110 Iiid. •Vll (1880); s.c. 11 N. E. Rep. 018; Wade V. State, 71 Iiul. 5.']5 (1880); Jaekman v. State, 71 Ind. 140 (1880) ; Snyder v. State, 50 Ind. 105 (1877) ; Kini,rcn v. State, 45 Ind. 519 (1874) ; Rland r. State, 2 Ind. 008 (1851) ; State V. Donnelly, 00 Iowa, 705 (1880); s.c. 27 N. W. Rep. 300 ; State i'. Mahan, (i8 Iowa, .304 (1880) ; s.o. 20 N. W. Rep. 440; 27 N. W. Rep. 249; State I'. McCormiek, 27 Iowa, 402 (1809) ; State V. Johnson, 8 Iowa, -525 (18.39) ; s.c. 74 Am. Dec. 321 ; State v. Gillit;k, 7 Iowa, 287 (1858) ; State v. Baldwin, 30 Kan. 1 (1880) ; s.c. 9 Or. L. Ma^. 40; 12 Pac. Rep. 318; affirming s.c. 7 Cr. L. Mag. 512 ; Radford v. Com- monwealth (Ky.), 5 S. W. Rep. .343 (1887) ; Coffwan v. Commonwealth, 10 Bush (Ky.), 495 (1874) ; s.c. 1 Am. Cr. Rep. 293; Williams r. Common- wealth, 9 Bush (Ky.), 274 (1872); Smith )•. Commonwealth, 1 Duv. (Ky.) 224 (1804) ; Jane v. Commonwealth, 2 Met. (Ky.) 30 (18,39) ; State r. Ricks, 32 La. An. 1098 (1880) ; Nye V. People, 35 Mich. 10 (1870) ; Burden r. People, 20 Mich. 102 (1872) ; Maher v. People, 10 Mich. 212 (1802); Clenn i-. State, (54 Miss. 724 (1887) ; s.c. 2 So. Rep. 109; Wesleij v. State, 37 Miss. 327 (18.50) ; s.c. 75 Am. Dec. (52 ; Mask v. State, 30 Miss. 77 (18.58); Moles V. State, 17 Miss. (9 Smed. & M.) 284 (1848) ; McDaniel v. State, 10 Miss. (8 Smed. & M.) 401 (1847); State V. Walker, 98 Mo. 95 (1888) ; s.c. 9 S. W. Rep. 640 ; State v. Brooks, 94 Mo. 121 (1887) ; s.c. 7 S. W. Rep. 24 ; State v. Leabo, 89 Mo. 247 (1880); s.c. 1 S. W. Rep. 288; State r. Hayes, 89 Mo. 202 (1880) ; s.c. 1 S. W. Rep. 305 ; State v. Ellis, 74 Mo. 207 (1881) ; State r. Edwards, 71 Mo. 312 (1879) ; State V. Dearing, 05 Mo. 5-30 (1877) ; State V. Byrne, 24 Mo. 151 (18.50); State V. Dillihunty, 18 Mo. 331 (1853); Schlencker r. State, 9 Neb. .300 (1879) ; s.c. 2 N. W. Rep. 710; State v. St. Clair, 10 Kev. 207 (1881); State v. Frazer, 14 Nev. 210 (1879); State v. Floyd, G Jones (N. C), L. 392 (18.59); State V. Simmons, 6 Jones (N. C), L. 21 (1858) ; State v. Harrison, 5 Jones (N. C), L. 115 (1857); State v. Owen, Phill. (N. C.) L. 425 (1868) ; Smith r. State, 41 N. J. L. (12 Vr.) 370 (1879); McNevins v. People, 61 Barb. (N. Y.) 307 (1872) ; Pfomer v. People, 4 Park. Cr. Cas. (N.. Y.) 558 (1800); Stephens v. People, 4 Park. Cr. Cas. (N. Y.) 390 (18.59); People V. Quin, 1 Park. Cr. Cas. (N. Y.) 340 (18.52) ; Beaudien i'. State, 8 Oliio St. 634 (1858) ; Robbins v. State, 8 Ohio St. 131- (1857) ; Stewart v. State. 1 Ohio St. 00 (18.52) ; Lane v. Com- monwealth, 59 Pa. St. 371 (1808); Kil- patriek v. Commonwealth, 31 Pa. St. 198 (1858); Small v. Commonwealth, 91 Pa. St. 304 (1879) ; s.c. 1 Cr. L. Mag. 331; State r. Jacobs, 28 S. C. 29 (1887) ; -State i: Coleman, 20 S. C. 441 (1883) ; State r. Stark, 1 Strobh. (S. C.) L. 479 (1847); Rea V. State, 8 Lea (Tenn.) 350 (1881); Anderson r. State, 31 Tex. 440 (1868) ; Monroe v. State, 2?> Tex. 210 (1859); s.c. 70 Am. Dec. 58; Barron v. State, 23 Tex. App. 402 (1887) ; s.c. 5 S. W. Rep. 237; McCullough v. State, 23 Tex. App. 020(1887); s.c. 5 S. W. Rep. 175; Hill c. State, 11 Tex. App. 450 (1882) ; Holmes v. State, 11 Tex. App. 223 (1882) ; Greta i-. State, 9 Tex. App. 420 (1881); Harrison r. State, 9 Tex. App. 407 (1881); Murray r. State, 1 Tex. App. 417 (1877) ; Dick- enson V. State, 48 Wis. 288 (1879); s.c. 4 N. W. Rep. 321. 1 Robbins v. State, 8 Ohio St. 131 (1857). 584 HOMICIDE. [chap. XXV that the jury should find the accused " guilty of murder in the first degree, or not guilty, according as they should find the fact," even if understood as requiring them to acquit him entirely in case they should not find him guilty of murder in the first degree, does not contain any error injurious to the defendant.! And it is thought that a charge by the court in making the distinction between murder in the first and second degree, that " if you believed the defendant killed the deceased in a sudden and unexpected fight without previous malice, and with no time for deliberation, and no previously formed design, then he will be guilty of murder in the second degree," is not such a charge as is calculated to mislead the jury, and preclude them from finding a verdict of manslaughter.^ 1 Dickerson r. State, 48 Wis. 288 (1879) ; s.c. 4 N. W. Rep. 821. 2 Anderson v. State, 31 Tex. 440 (1868). An instruction which declares that if the jury find that defendant killed liis wife " by choking and strangling her, by fixing, fastening, &c., his hand about her neck and throat, and then by throwing her, so choked and strangled, into the well," &c., then they should return a verdict of guilty, is not to be construed as a direction to find him guilty if they find that he "first choked his wife to death, and then drowned her in a well " ; but means that if they find she was killed by all the means so employed conjointly, and by none of them separately, they should return a verdict of guilty. State V. Leabo, 89 Mo. 247 (1886) ; s.c. 1 S. \V. Rep. 288. On trial of indictment for murder, and for being an accessory thereto, the court instructed the jury: "By his testimony he charges the murder upon the wife of the victim. In so doing, lias he kept back and concealed what would, if divulged, implicate himself in the commission of the deed, or show that lie aided and as- sisted the woman in its commission^ Has he told the whole Irutli in respect to the deatli of deceased^ Has he satisfied you that tlie woman, alone and uiiaiili'd, perpetrated the crime? If you are satisfied that he has not told the whole truth in respect to the death of the deceased ; that lie has kept back and concealed important facts and circumstances connected with such death ; if, from the nature of things, you are satisfied, from the testimony that you regard as reliable, that something must have been done in taking the life of deceased other than what he has stated ; what does such testimony justify you in believ- ing has been suppressed by the de- fendant And docs what has been suppressed implicate him as aiding and assisting in the commission of the deed and how ? These and like questions are important for your con- sideration in determining whether the defendant be or be not guilty." Held, not liable to the objection that it left the jury to find defendant guilty upon conjecture, or otherwise than upon the evidence. Dickerson v. State, 48 Wis. 288 (1879). Where, on a trial for murder, the court, in relation to the dying declara- tions of the deceased, instructed the jury as follows : " If you receive them as true, it will be your duty to find the defendant guilty of murder in the first degree, because they show that it was done, either in the perpetration of, or attempt to perpetrate a rob- bery"; and where the court, in re- sponse to an interrogatory of the jury, SEC. 533.] INSTRUCTIONS TO THE JURY. 585 In a prosecution for murder in the first degree, a charo-e that " no matter what the provocation ; no matter wliat tlie heat of passion ; no matter if there were any previous assaults ; no matter what the other surrounding circum- stances might have been ; unless the act was justifiable, if there was a premeditated design to produce death, it is murder in the first degree " is not erroneous, it being clear from the whole charge that, by the provocation and heat of passion here spoken of, were meant such as are not incompatible with the formation in the mind of the accused of a deliberate j)remeditated design to kill the deceased.^ A charge that "• it is the duty of the person assaulted to retire to what is termed the wall or ditch, before he is justified in repelling an assault by taking the life of an assailant. But cases fre- quently arise where the assault is made with a danggrous or deadly weapon and so fiercely as not to allow the party assaulted to retire without manifest danger to his life, or great bodily injury; in such cases he is not required to retreat " is not objectionable as holding by implication that the defendant was only excused from retreating M-here it would be manifestly dangerous to attem[)t it.^ The deliberation and premeditation necessary to constitute murder in the first degree may be inferred from the circum- stances of the killing, and the jury may be so instructed.'^ Sec. 58-3. Same — Contradictory and niisleadinj^ in- structions. — All contradictory and misleading instructions further said : " That if you slioukl be- into what was said by the deceased on lieve that the deceased was mistaken the subject of defendant's object in as to tlie object the defenihint had in inllicting tlie wound, you may inquire killint; {i.e. for his money), and that whether he meant to say that a rob- all the otiier declarations were true, bery had been committed, or whether and are satisfied, from the circum- he referred to the intention of defend- stances detailed by the testimon^'jtliat ant in making the assault." Held, tlie murder was wilful, deliberate, and that taking tlie instructions together, committed with malice aforethought, the first was not objectionable, or at the verdict should be for murder in least not so much so as to alone jus- the first degree. You can find a ver- tify a reversal of the cause. State v. diet of guilty of murder in the second Johnson, 8 Iowa, 525 (1859); s.c. 74 degree, if the murder was wilful, and Am. Dec. 821 (1859). with malice aforethought, though not ^ Roman v. State, 41 Wis. 312 deliberate and premeditated, provided (1877). you are not satisfied that it was com- - State v. Donnelly, G9 Iowa, 705 mitted in the perpetration, or attempt (188f)) ; s.c. 27 N. W. Kep. .369. to perpetrate, a robbery. In inquiring ^ State v. Walker, 98 Mo. 95 586 HOMICIDE. [chap. XXV. are erroneous, and a ground for reversing a conviction in those cases where the error was of a substantial kind, and prejudicial to the defendant. Thus an instruction, that "• the necessity for the killing must be apparent, actual, imminent, absolute, and unavoidable," is contradictory and misleading.^ And an instruction that, if homicide be committed by a deadly weapon in the previous possession of the slayer, the law implies malice in the perpetrator," given without qualifi- cation, is wrong and misleading.^ In the recent case of Radford v. Commonwealth,^ on a pros- ecution for manslaughter, the trial court instructed the jury that if they believed " that the defendant shot and killed the deceased, he, the said defendant, not being himself the attack- ing party in said encounter, yet had reasonable grounds to believe q^nd did believe his life was then in danger, then said de- fendant had the right to use such means," &C. The appellate court held the instruction in regard to the defendant's not being the attacking party was misleading, in view of the fact that the jury may have thought that the mere taking of the gun along by the accused, which the evidence tended to show was for the purpose of protecting himself, amounted to an attack upon the deceased. Sec. 534. Same — Using- figure of speech. — An instruc- tion that the killing will be manslaughter, if the reason of the prisoner was temporarily dethroned by passion, is a figure of speech which ought not to be used by a judge in his charge to the jury, on a trial for murder, as they may infer therefrom that no sudden heat, short of the dethrone- ment of reason, will mitigate a killing to manslaughter ; hence it is error so to charge."^ Sec. 535. Same — Instructions as to form of verdict/^ — The court should instruct the jury as to the proper form of the verdict. In the famous Anarchists' Case the trial court instructed the jury as to the form of their verdict, as follows : "If all the defendants are found guilty, the form of the (1888); s.c. 9 S. W Rep. 640; State 2 Smith r. Conimoiiwealtli, 1 Diiv. V. Grant, 76 Wis. 247. (Ivy.) 224 (1864). 1 People V. Gonzales, 71 Cnl. 500 3 5 s. W. Rep. (Ky.) 34:1 (1887). (1887) ; s.c. 9 Cr. L. Mag. 307; 12 * Bland r. State, 2 Ind. 008 (1851). Pac. Kep. 783, '^ See ante, § 529. SEC. 536.] INSTRUCTIONS TO THE JURY. 587 verdict will be, ' We, the jury, find the defendants guilty of murder, in manner and form as charged in the indictment,' and fix the penalty. ... If all are found not guilty, the form of the verdict will be, ' We, the jury, find the defendants not guilty.' " And correspondingly, in case part were found guilty and part not guilty. The verdict was, guilty of murder. It was objected by the defendants, that' under this instruction, the jury were obliged to find the defendants guilty or not guilty of murder, whereas the jury were entitled to find that the offence was a lower grade of homicide tlian murder, if the evidence so warranted. But the objection was not well taken. If the defendants desired to have the jury differently instructed, they should have prepared an instruction accordingly.^ An immaterial omission in instructing the jury as to the form of their verdict, will not vitiate such instruction, but a material one will. Thus in Hill v. State ^ an instruction that in the event of finding from the evidence that the de- fendant was guilty of murder in the second degree, the jury should assess his punishment at confinement in the peniten- tiary for any length of time, " not less than five," omitting " years," was held to be fatally defective. Sec. 536. Written instructions. — It is sometimes pro- vided by statute that the instructions of the court in cases of homicide shall be in writing. Such a provision must be in- terpreted as referring to the charge of the court to the jury upon the law of the case, and not a mere direction given to them, incidentally or otherwise, as to a former procedure.^ Where such a statutory provision exists, it will always be presumed, in favor of the regularity of the proceedings, that it was complied with in the absence of a showing to the contrary, and the record need not expressly show that such was the case.* 1 Spies V. People, 122 111. 1 (1887) ; upon the court directed them orally s.c. 9 Cr. L. Mag. 829; 3 Am. St. to return and "to find" in what Rep. .320; 6 Am. Cr. Rep. 570; 12 degree. Held, that this was not a N. E. Rep. 865; 17 N. E. Rep. 898. charge whicli was required to be in 2 11 Tex. App. 456 (1882). writing. People v. Bonney, 19 Cal. 3 A jury, in a murder case, re- 42(5 (1861). turned a general verdict of guilty, as * People u. Chung Lit, 17 Cal. 320 charged in the indictment; where- (1861). 688 HOMICIDE. [chap. XXV. Sec. 537. Instruction as to evidence of accomplice. — The question whether or not a judge, in charging a jury, should or should not caution them that the evidence of an accomplice should be corroborated, is not a matter for a court to review on a case reserved, for it is not a question of law, but one of practice, though a practice which should not be omitted.^ Sec. 538. Instruction as to reasonable doubt and alibi. — It has been said that in a murder trial, after instructing the jury that " if there is in this case a reasonable doubt it will be your duty to acquit," and '' if upon the whole evi- dence there is not a reasonable doubt it will be your duty to convict," the judge instructed the jnry that "an alihi^ when established to the satisfaction of the jury, is as conclusive a defence as can possibly be interposed; that it need not be established beyond a reasonable doubt, but it should be estab- lished to the satisfaction of the jury," the charge, taken as a whole, is correct.^ 1 Reg. V. Stubbs, 7 Cox C. C. 48, 2 People v. Stone, 117 N. Y. 480. and Reg. v. Beckvvith, 8 Car. & P. 277, (1889). followed Reg. v, Andrews, Ont. Rep. C. P. D. 184. CHAPTER XXVI. DISAGREEMENT AND EE-TRIAL. Sec. 539. Discretion of trial court. Skc. 540. Same — Continuance. Sec. 539. Discretion of trial court. — The discharging of the jury because of inability to agree upon a verdict, in the trial of an indictment for homicide, is a matter almost exclusively within the discretion of the court, which will not be disturbed, even in a capital case, except where gross" abuse is clearly shown ; and all presumptions are in favor of the correctness of the action of the court in discharging a jury because of disagreement.^ Sec. 540. Same — Continuance. — Where the jury in a case of homicide has disagreed, and has been discharged, it is usual to continue the case until the next term of the court; but this is within the discretion of the trial court, and it is no error, even in a capital case, to proceed t(5 a second trial before another jury at the same term of the court.^ 1 See State v. Dunn, 80 Mo. 681 2 state v. Allen, 47 Conn. 121 (1883). (1879). 589 CHAPTER XXVII. THE VERDICT. Sec. 541. Time and manner of rendition. Sec. 542. Form of verdict — Specifyin-;^ tlie degree of guilt. Sec. 543. Same — Variance from indictment — Effect. Sec. 544. Same — Amending form of verdict. Sec. 545. Same — Assessing tlie punisliment. Sec. 54(3. Same — Constitutionality of statute. Sec. 547. Specifically acquitting of higher or lower degree. Sec. <548. Naming the defendant. Sec. 549. Specifying the count sustained. Sec. 550. Recommendation of mercy. Sec. 551. Errors in spelling and bad grammar Sec. 552. Same — Idem sonaiis. Sec. 553. Polling the jury. Sec. 541. Time and manner of rendition. — There is no prescribed time when a verdict in a homicide case must be rendered, except that it must be received at some time during the term at which the trial takes place, and in open court.^ But it is thought that although the statute specifies that a verdict shall be rendered in open court, it will not be set aside because received after adjournment for the night, the judge, officers of the court, the defendant and his counsel being present, and the defendant by his counsel having de- manded the polling of the jury.^ Unlike olher proceedings, the verdict may be received and the jury discharged on Sunday ; and a judgment of conviction ^ Where, in a criminal case, a judge ated as an adjournment sine die; adjourned the court at (J r.M. until therefore that the verdict received on noon of the next day, which was in the next day from the jury out when the next term, placing no reason for tiie court adjourned was not received such adjournment upon the record, it during the term, and was a nullity, was held tiiat he had no right to so Morgan )•. State, 12 Ind. 448 (1859). adjourn under the statute ; therefore '^ State v. McKinney, 31 Ka. 570 that the order was not a good adjourn- (1884) j s.c. 3 Pac. Hep. 35G. ment to the next day, but only opcr- 590 SEC. 544.] THE VERDICT. 591 rendered on a regular court day will not be invalidated because the verdict is found and reported on Sunday.^ Sec. 542. Form of verdict — Specifying- the ); Galian r. People, 58 111. 100 & See Williams i: State, 00 Md. (1871) ; Walker -•. State, 13 Tex. App. 402 (1883) ; State v. Ostrander, 30 Mo. »;i8 (1883); s.c. 44 Am. Rep. 710, 13 (1860) ; Kotlibaucr c. State, 22 Wis. note ; Henry v. State, 7 Tex. App 388 468 (1808). (1880). ' '' Uathbauer v. State, 22 Wis. 468 •^ Walker r. State, 13 Tex. .App. 618 (1868). (1883) ; .s.c. 44 Am. Hep. 716, note. SEC. 553.] THE VERDICT. 597 effect, as a verdict of not guilty in the first degree, the court held that there was no verdict, and that there was a mistrial ; but this decision was overruled on appeal.^ 1 State 1'. Ostrander, 30 Mo. 13 (18G0). INDEX. Abortion, alleging crime in indictment for, 281, 282. killing, in attempting to produce, 57-60, 168. causing pregnant woman to take poison, 58. supplying drugs without causing them to be taken, 59, 60. in attempting to kill a child by use of drugs or instruments, 168. manslaughter when, 168. murder when, 57, 58, 168. Accomplice, declarations of, 478. See Evidence. instructions as to evidence of, 588. testimony of, 557-559. See Evidence. Act or omission causing- death, liability for, 37, 38. Acts of kindness, of defendant towards deceased, 489. Administering- medicine, killing by, misadventure, 26. Adulterer, killing by, in resisting husband's attack, manslaughter, 159, 160. killing of, when taken in the act, manslaughter, 12. Adultery, with slayer's wife sufficient provocation to reduce killing to man- slaughter, 154. AfRdavit, for continuance, as evidence against defendant, 509. See Evidence. Agent, causing death through, innocent agent, 5. irresponsible agent, 2, 5. substituted agent, 4. Alias dictus, proving, 542. See Evidence. Alihi, instructions as to, 588. See Instructions. proving, 560, 561, 572-574, See Evidence. Alien enemy, not in arms, killing of, murder, 66. 599 GOO homicide: Anarchists, case of, 572. malice presumed from manufacture of dynamite bombs, 78, 79. rule in Colorado and Louisiana, 79, 80. Anarchistic principles, proof of, 190. See Evidence. Arraigiiinent and plea, manner of reading of indictment on, 353. necessity for, 351-353. pleading former jeopardy, 359-361. what is a sufficient plea of, 3(J1. pleading guilty, 358. ascertaining degree, 358. retraction of plea, 358, 359. pleading nolo contendere, 358. pleading not guilty, 357. duty of court, 357, 358. re-arraignment, 353. sufficiency of, 351-353. withdrawal of plea, 354-357. for purpose of motion, 354. hearing of evidence on application for, 357. of guilty, when permitted, 354-357. statutory provisions, 357. Arrest, illegal, not justify killing, 92, 93, 94. killing in making, 215, 216. killing in resisting by force, 93, 21G. resistance with reasonable force, 93. Arrest and hearing-. See Prelimixaky Examination. Artifice and deception, in procuring confession, effect of, 554. Assanlt, killing in resisting, is murder when, 13. with deadly weapon, 203. question of right of self-defence, 203. Avarice, as a motive to crime, 515-517. See Evidence. Bad grammar, effect on verdict, 594, 595. Sec Vkudict. Bail, after conviction, 328, 329. American doctrine of, 317-319. Texas doctrine, 319. burden on defendant to show guilt not evident, 325, 326. causes for, 322. INDEX. 601 Bail — Continued. causes for — Continued. sickness and disease, 322-324. common law doctrine of, 31(5, 317. for murder in first degree when, 320. forfeiting and threatening to resist not adequate provocation to re- duce liomicide to manslaughter, 153. granting and refusing, 319, 320, 329, 330. granting after indictment, 322. jurisdiction to admit to, 321. on failure of jury to agi-ee, 327, 328. procedure on, 329, 330. proof of guilt justifies refusal when, 324, 325. review of refusal, 330. what inquired into on admitting to, 324. when refused, 319, 320. Banter, provocation justifying homicide, 151. Bludgeon, charging killing with, 293. Bodily harm, intent to infiict, 29. Books, medical and scientific, as evidence, 530, .531. See Evidence. Business and social relations, proof of, 502. See Evidenck. Caption of an indictment. See Indictment and Information. Carelessness, supplies place of criminal interest, 96, 97. Chance medley, homicide by, defined, 24. Character and disposition of defendant, as to, 483. See Evidence. Child, inciting to murder another, 34. Clergyman, confession to, admissibility in evidence, 554. Co-conspirators, indictment of, as accessories, 30, 123, 124. Co-defendants, acts and declarations, evidence of, 493. See Evidence. Committing magistrate, examination before. See Preliminauy Examination. 602 HOMICIDE. Commitment, warrant for, on preliminary examination, 269. Communistic principles, proof of, 490. See Evidence. Confederates, acts, declarations, etc., of, 490. after the homicide, 493, 494. before the homicide, 490-492. Confessions. See Evidence. as to, 543-556. during examination, 555. extrajudicial confessions, 545 et seq. grounds on which received, 544. inducement to, by pei'son in authority, 549-552. a chaplain of the prison, 551. a constable in charge, 551. a person arresting, 551. a jailer, 551. a magistrate acting in the case, 551. a master or mistress of prisoner, 551. a person having authority over tlie prosecution, 551. a person having judicial authority, 551. a private person in presence of one in authority, 552. a woman with whom a female prisoner is left by officer, 551, 552. an officer in charge, 551. the prosecutor, 551, 552. the prosecutor's attorney, 552. the prosecutor's mother-in-law, 552. the prosecutor's wife, 552. inferred when, 555, 556. judicial confessions, 545 et seq. made through fear of mob violence, 553, 554. made while under arrest, 552. nuist be free and voluntary, 547, 549, 550. must be taken as a whole, 556. nature and effect of, 542, 547. obtained by artifice or deception, 554. obtained by questioning, 555. obtained during examination, 55.5. procured by artifice or deception, 554. retraction does not affect, 545. to clergyman, 554. value of, 546, .547. whole confession taken together, 556. Consent of killed, does not prevent tlio offence being murdor, 00. 61. Conspiracy. See Conspiuatoiw and Conspikacy. INDEX. 603 Conspirators and conspiracy, act of one act of all iu felony, 126, 127, 129, 130. otherwise in misdemeanor, 128. acts, declarations, etc., of co-couspirators, 490. after the homicide, 493, 494. before the homicide, 490-492. concert of action, 130. death the probable result, all bound, 130. killing, in executing felonious design, murder, 129. in carrying off a vessel, 95. liability of all for acts of one, 39. person to be killed need not be designated, 131. preparer of instrumentalities need not know who to use them, 130, 131. principal in first degree need not be known, 131. purpose of conspiracy must be vinlawf ul, 132. the Anarchists' Case, 131-133. tdtimate object to be attained need not be the same in all, 132. where means agreed upon, 131, 132. where means not specifically agreed upon, 131. where killing unconnected with design, 40. party killing alone responsible, 40. Constitutionality, of statute providing for assessing punishment in verdict, 592. Construction of statutes, prescribing degrees of murder, 104-106. Continuances, affidavit for as evidence on trial, 509. Continuing offences, California, etc., doctrine, 44. common law doctrine, 45-47. English doctrine, 48. jurisdiction over accused, 44, 45. liability for, 44. New Jersey doctrine, 44. Convict, escaped, shooting officer seeking to recapture, murder ; 93. Conviction of accessory, before principal, 136. Coroner's inquest, testimony at, as evidence on trial, 508. Corpus delicti, burden of proof of, as to, 535. See Evidence. Counsel, appointment of, 338-340. argument of counsel, for defendant, 347, 348. 604 HOMICIDE. Counsel — Continued. argument of counsel — Continued. for prosecution, 340, 341. limiting time of, 348-350. for defence, 337. common law doctrine, 337, 338. American doctrine, 338. Canadian doctrine, 338. for prosecution, 330. argument of, 340, 341. misconduct of, during trial, 341-343, 412. abusive language, exciting prejudice, 343, 344. commenting on failure to testify, 345, 346. discretion of court in granting new trial for, 346, 347. improper remarks, 342, 343. misstatement of facts, 344, 345. assumptions, 345. Cries of bystanders, as evidence, 497, 498. See Evidence. Criminal intimacy with a female as motive to a crime, 517, 518. Deadly weapon, assault witli, raises right of self-defence, 209. malice presumed from purchase and carrying of, 466. malice presumed from use of, 27, 28, 80. in correction of child, 27, 28. mere words will not justify use of, 83. purchasiiig and carrying shows malice, 466. what is, 81. a question for the court, 81. the intention of tlie party, 82. Death, from subsequently contracted disease relieves, 39. produced by other cause, 2, 28. Defences to homicide, homicide because of reward offered for death of deceased, 219. homicide from compulsion, 225. by accident and mistake, 225, 227. in war, 225. while insane, 227-230. moral insanity, 230. uncontrollable impulse, 228. homicide from necessity, 222-225. the Mignonnette Case, 223, 224. homicide in defence of a woman's chastity, 219-221. homicide in making arrest, 215, 216. homicide in preventing forcible breaking and entering dwelling, 218. homicide in resisting arrest, 21G, 218. INDEX. COo Defences to homicide— Continued. homicide in resisting arrest — Continued. ill resisting unlawful arrest, 217. homicide in resisting rescue, 21(). homicide to prevent a crime, 172-215. in defence of another, 185-187, 207, 208. wiien right exists, 185, 186. to prevent a felony, 185, 186, 187. to protect life or limb, 185. in defence of property, 208. killing in repelling trespass, when a defence, 213. of the habitation, 208-212. of other property, 212-215. setting spring-guns, 214, 215. Alabama doctrine, 2-1. Connecticut doctrine, 214, 215. in self-defence, 172. assault with deadly weapon raises right of, 203. duty to retreat, 08, 203, 205, 206. Indiana doctrine, 205, 206. Ohio doctrine, 206. where assailed in own dwelling, 203-205, false statement as to condition of weapon not prevent set- ting up, 178. killing must be last resort. 203. defendant must be without fault, 201. 202. duty to retreat, 198, 203, 205, 306. where assaulted in his own dwelling, 203-205. reasonable belief in imminent danger, 187-189, 191. .apparent design of the assailant, 187. erroneous idea of danger, effect of, 188. where honest and non-negligent, 188. Pennsylvania doctrine, 188, 189. grounds for belief in danger, 189-199. appearance, 189. assault, in sudden heat of passion, 198. merely by laying hold of, 197. where battery only threatened, 196. where defendant or another endangered, 196. with deadly weapon by unlawful occupant of defendant's house, 197. with stick, after threats to kill, 197. on public highway, 197. conspiracy to take life, 192, 193. former acts or attempts, 192. 60G HOMICIDE. Defences to homicule — Continued. homicide to prevent a crime — Continued. in self-defence — Continued. killing must be last resort — Continued. reasonable belief in imminent danger — Continued. grounds for belief in danger — Continued. gestures and menaces not, 193. unless shows intention to use deadly weapon, 193. illustrations, 193, 194. overt act necessary, 189-191. possession of weapon not, 194. unless intention to use it is manifested, 194. illustrations, 194, 195. real intention of deceased immaterial, 19.5. illustrations, 195, 196. threats are not, 190. illustrations, 190, 191. mere words not, 190, 202. where the defendant the aggressor, 192. question for jury, 187, 188. what constitutes imminent danger, 187. when fear reasonable, 188. must endeavor to avoid difficulties, 198, 199. provoking assault prevents setting up, 199. notice of desire to withdraw from combat, 202. provocation, what is, depends upon circumstances of each case, 200, 201. right of, 190. not created by mere trespass upon property, 202. not created by mere words, 190, 202. not created or raised by nuitual combat, 202, 203. not impaired by preparation for wrongful act, 202. when exists, 173, 185, 186, 190. assault with deadly weapon raises, 203. illustrations, 174-185. right to pursue assailant, 206, 207. slayer must be without fault, 201. illustrations of the doctrine, 201, 202. where assaulted with deadly weapon, 197, 203. homicide to prevent the escape of a felon, 216. intoxication as a defence. involuntary intoxication, 251. voluntary intoxication, 230-251. as affecting degree of offence, 242. as affecting intent, 241, 242, 243. INDEX. 60" Defences to homicide — Continued. intoxication as a defence — Continued. voluntary intoxication — Continued. as affecting malice, 244, 245. as att'ectiug motive, 2o9, 240. as an aggravation of the offence, 237. Illinois doctrine, 237. Texas doctrine, 238. as disproving criminal intent, 246, 247. cannot be shown to I'educe the grade of crime, 244. delirium tremens resulting from, 250. fixed frenzy produced by, 249, 250. fortifying by intoxication, 245, 246. index to quality of act, 239, 240. insanity resulting from, 247, 248. delirium tremens, 250. fixed frenzy from, 249, 250. predisposition to from, 249. irresistible appetite, 233. mental affection must be permanent, 237. predisposition to insanity from, 249. producing temporary insanity, 234. shown as affecting physical capabilities, 236. when considered, 238-242. in ascertaining intent, 241, 243. in determining motive, 239, 240. index to quality of act, 239. killing officer dispersing public meeting, 218, 219. the Anarchists' Case, 218. killing one guilty of adultery with slayer's wife, 221, 222. moral insanity, 230. somnambidism as a defence, 251-254. Degree of guilt or homicide, instruction as to, 576-.578. See Instructions. specifically acquitting of higher or lower degree, 592, 593. specifying, in indictment, 287, 288. in verdict, 591. Deliberation. See Deliberation and Cooling TniE. definition of, 72. Deliberation and cooling time, adequate cooling time, what is, 69, 71, 72, 73. a question for the jury, 70. calm and deliberate mind shows, 72. determination to use deadly weapon shows, 71. formed design shows, 72. inadequate cooling time, what is, 73. 608 HOMICIDE. Deliberation and cooling- time — Continued. adequate cooling time, ■what is — Continued, inadequate cooling time — Continued. illustrations, 73-75. no specific time is, 70 et seq. thought and contrivance shows, 72. time for ordinary man to cool, 70, 71, 73. other discourse intervening, presumptive of, 71. taking up and pursuing ordinary business, 71. artifice to cover crime, 72, 73. cooling time prevents reduction of homicide to manslaughter, 145, 146, 149. feigned reconciliation, 76. if there is, the killing is murder, 69. inquiry as to scope and object of, 70. pursuit on quarrel, 84, 86, 88. scope and object of, inquiry as to, 70. seeking revenge the next day, for assault on accused's son, 89. shown by threats, 85. sufficiency of time, a question for the jury, 70. sufficient time for a reasonable man to have cooled, 70, 71, 73. South Carolina doctrine, 70. sufficient deliberation, what is, 72. See ante, adequate cooling time (this title). evidence of a calm and deliberate mind, 72. formed design, 72. thought, contrivance, etc., 72. passion after intent formed, 75. pretence of fighting, 75, 76. what is, 69. Delirium tremens, as a defence to homicide, 250. See Defences to Homicide. Deserters, killing is murder, 66. » Desig-n to kill. See Murder, Second Degree. Disagreement and re-trial, as to, 589. continuance, 589. discretion of trial court, 589. Disease, inoculating with, death by, 41. inoculating with, venereal, 41. that would have killed, will not relieve from felonious homicide, 37. Drugs, administering to woman to produce abortion, 168. INDEX. 609 Duty, causing death by omission of, 2, 5. negligent omission of, causing death, manslaughter, 68. wilful omission of, causing death, murder, 08. Duty to retreat. See Defences to Homicide. as to, 203, 205. when assaulted in own dwelling, 203-205. Dying" clcclai-ation. See Evidence. Election, where offence charged in two counts, 278. Erroneous medical ti*eatuient, will not relieve from liability for felonious assault, 38. Errors in preliminary examination, effect of, 206. Errors in spelling, effect on verdict, 584. See Verdict. Escape, as evidence against defendant, 470. See Evidence. in arrest for misdemeanor does not justify killing, 11. rebutting presumption arising from, 471. Evidence, accomplice, testimony of, as to, 557-559. acts, of confederates and co-conspirators, 490. . after homicide, 493, 494. before homicide, 490-492. revolutionary organization, 492. adopting writings of another, 492, 493. of the deceased, 433, 434. of the defendant, 435. after the homicide, 469. appearance indicating mental condition, 468. conduct indicating mental condition, 469. flight or escape, 470-472. evidence of refusal to flee, etc., 471. rebutting presumption arising from, 471. inconsistent with declarations, 435. before the homicide, 465-469. inconsistent with declarations, 435. no limitation as to time of inquiry, 465. other crimes of the defendant, 467-469. remote and inconsistent, admissible when, 466. riotous acts at different place, 467. inconsistent with declarations, 435. of third parties, after the homicide, 496, 497. • 39 610 HOMICIDE. Evidence — Continued. acts — Continued. of third parties — Continued. before the homicide, 494, 495. cries of bystandei's, 497. against a person as accessory in poisoniug, 134, 135. alias dictus, proving, 542. alibi, proving, 559, 560, 572-574. Anarchists' Case, the, 572. anarchistic principles, proof of, 490. avarice as a motive, 515-517. books as evidence, 530, 531. burden of proof and presumptions, 535. as to corpus delicti, 535. as to malice, 535-537. as to insanity, 537, 538. character and disposition of defendant, 483. peacefulness of character, 483-485. negative evidence, 485-487. reason for the rule, 487-489. defendant's acts of kindness towards deceased, 489. circumstantial evidence, 504-507. possession of stolen property, 568. co-conspirators, acts, declarations, etc., of, 490. after the homicide, 493, 494. before the homicide, 490-492. co-defendants, acts and declarations of, 493. after the homicide, 493, 494. communistic principles, proof of, 490. conduct of the deceased, 433, 434. comparison of handwriting, 505. of tracks and footprints, 505-507. compelling defendant to make, 506, 507. experiments out of court, 507. compelling defendant to make imprint of foot for comparison. 505-507. competent evidence, establishing death by, 568. competency of, 418. and weight, instruction as to, 481. determining, 420. confederates, acts, declarations, etc., of, 490. after the homicide, 493, 404. before the homicide, 400-192. confessions. See Confession. as to, 479, 543. by an accomplice, 482, 483. INDEX. 611 Evidence — Continued. confessions — Continued, involuntary, confessions made under menace are, 479, 480. inadmissible in evidence, 479. knowledge of effect, 480, 481. must be taken as a whole, 479. must be voluntary, 479. to whom made, 481. to fellow-prisoner, 481, 482. on assurance that one criminal can not testify against another, 482. to prosecuting officer, 482. corpus delicti, as to, 539-541. burden of proof as to, 535. New York rule, 541, 542. corroboration of eyewitnesses not necessary, 564. cries of bystanders, 497, 498. criminal intimacy with female as a motive, 517, 518. declarations, » of a confederate or co-conspirator, 490. after homicide, 493, 494. before homicide, 490-492. of an accomplice, 478, 479. of deceased, 436-438. as to slayer, 439. dying declarations, 450-455. admissibilitt/ of, partly written and partly oral, 450. stating fact and expressing opinion, 450, 451. test of admissibility, 448-450. belief in impending death, 449. when admissible, 440, 449. form of, 455. Kansas doctrine, 444-446. must be made under sense of impending death, 441-443. partly written and partly parol, 450. reducing declaration to writing, 4.52, 453. partly written and partly parol, 450, 451. scope of declarations, 446-448. stating fact or expressing opinion, 450, 451. time between declaration and death immaterial, 443, 444. time of declaration, 443, 444, 453-455. when admissible, 440. not made in extremis, 438, 439. to show physical peculiarities, 437. 612 HOMICIDE. Evidence — Continued. declarations — Continued. of deceased — Continued. when admissible, 437. when res gestcB, 436. of defendant, 472-478, after the homicide, 475. proof by prosecution, 475, 476. proof by defence, 476-478. before the homicide, 472-474. writings of defendant, 474. to kill some one else, 474. of third persons, 494. made after the homicide, 496, 497. made before the homicide, 494, 495. made in the presence of accused, 498. made out of presence of accused, 498, 499. defendant's guilt upon the whole evidence, 563-575. diagrams in evidence, 533. direct evidence, 563. dying declarations. See Declarations of Deceased (this title). establishing facts by competent evidence, 568. experiments, admissibility of, 529, 530. expert and opinion evidence, .523-525. See Experts. experts. See Experts. non-experts as witnesses, 527. skilled workmen as, 523, .525. eyewitnesses of act causing death, 563. corroboration, 564. given at former inquiries, 507. at coroner's inquest, 507, 508. at former trial, 509. at preliminary hearing, 508, 509. defendant's affidavit for continuance, 509. hearsay evidence, 531, .532. ill-feeling, proof of previous, 499. impeaching evidence, 532, 533. incriminating testimony, 420. insanity. See Ixsamtv ; Defences to Homicide. as to, 560, 561. proof of, 520-527. excessive use of liquors may be shown, 522. , expert and opinion evidence, 523-525. in insanity cases, 52.5, 526, evidence proper to be considered, .521, 522. kinds of evidence required, 520. non-experts, testimony of, 527-529. INDEX. 613 Evidence — Continued. insanity — Continued. proof of — Continued. opinions of non-expert witnesses, 526, 527. time to which inquiry limited, 522. jealousy as a motive, 519. material facts charged, proof of, 571. medical books as evidence, 530, 531. motive, avarice, 515-517- criminal intimacy with a female, 517, 518. immunity from prosecution, 510. improper devotion to a female, 517. jealousy, 519. marital infidelity, 518. prevention of intimacy by deceased, 513, 514. promotion of plans of secret organization, 514, 515. revenge, 519. showing, 510. non-experts as witnesses, 527. non-professional witnesses in insanity cases, 526. of character, 483-489. of character of the deceased, 456. of disposition of deceased, 456. of habits of deceased, 456. of other crimes, 51 L when admissible, 511, 512. of threats, by confederate or co-defendant, 490. after the homicide, 493, 494. before the homicide, 490-492. by the deceased, 426-428. foolhardy threats, 429- when the defendant the aggressor, 428. • when uncommunicated, 428. by the defendant, 4G1-465. competent to show malice, 401. conditional threats, 463. need not be made to any person, 464- need not be toward any particular person, 462, 463. time of threats, 4(54, 465. to kill some one else, 474. where against a specified person, 463. by secret societies, 430. by third person, 429, 430, 494. after homicide, 496, 497. before homicide, 494, 495. 614 HOMICIDE. Evidence — Continued. of threats — Continued. communicated threats, 430. overt act must be shown, 433. showing premeditation, 432. uncommunicated threats, 430, 431. as corroborative evidence, 431. opinion evidence, 523-525. order of proof, 421. in conspiracy cases, 421, 422. proving corpus delicti, 421. physical superiority of defendant, 483. premeditation shown by threats, 432. presumptions and burden of proof, 535. See Burden of Proof (this title). as to corpus delicti, 535. previous ill-feeling, showing, 499. previous relations between deceased and defendant, 499. business and social relations, 502, 503. previous ill-feeling and quarrelling, 499-501. proof by defence, 501, 502. proof by prosecution, 500, 501. when two jointly indicted, 501. previous quarrelling, showing, 499. promotion of plans of secret organization as a motive, 514, 515. proof of character, disposition, habits, etc., of deceased, 456. by defence, 457—460. of character in foreign country, 459, 460. what may not be proved, 4G0. when not admissible, 460. where defendant the aggressor, 460, 461. where question of self-defence left open, 458. proof as tp weapon, 503-505. proving, alias dictus, 542. alibi, 550, 560, 572-574. deceased an officer of the law, 509, 510. insanity, 560, 561. previous quarrelling, 499. provocation, 435. self-defence, 559. venue, 542. provocation, proof of, 435. quarrelling, proof of previous, 499. reasonable doubt. See Reasonable Doubt. doctrine of, 543, 569. INDEX, 615 Evidence — Continued. res gestae, declarations of co-defendant not, when, 193. what is, 434. revenge may be shown as a motive, 519, 520. revolutionary organization, proof of adoption of writings of others, 492. scientific books and writings as evidence, 530, 531. self-defence, proving, 559. skilled workmen as experts, 525. socialistic principles, proof of, 490. somnambulistic condition, proof of, 490. sufficiency of evidence, 562. suicide not evidence of insanity, 51, 52. but may be considered by the jury, 51. testimony at former inquiries, 507. at coroner's inquest, 507, 508. at former trial, 509. at preliminary hearing, 508, 509. defendant's affidavit for continuatice, 509. things in evidence, 533. threat. See " of threats," supra. to convict of aiding and abetting suicide, 53. to convict on giving mortal wound, 36. to prove corpus delicli, 425, 426. to support indictment charging feloniously placing infant in perilous position, 69. tracks, coujpelling defendant to make, for comparison, 506. experiments with, out of court, .507. use of intoxicating liquors, proof of, 489. venue, proving, 542. view of premises by jury, 534, 535. weapon with wliich homicide committed, as evidence, 534. ■weight and sufficiency of, as to, 538-563, 568. alias dictus, proving, 542. alibi, 559, 560. confessions, 543. See Confessions. corpus delicti, 539-541. New York rule, 541, 542. doctrine of reasonable doubt, 543. insanity, proving, 560, 561. proving alibi, 559, 560. insanity, 560, 561. self-defence, 5.59. reasonable doubt, doctrine of, 543. self-defence, proving, 559. 616 HOMICIDE. Evidence — Continued. ■weight and sufiEciency of — Continued. sufficiency of evidence, 562. testimony of accomplice, 557-559. witnesses. See Witnesses. writings of others, adoption of, by revolutionary organization, 292. Excuse, instruction as to, 579, 580. See Instruction. Experiments, admissibility in evidence, 529, 530. See Evidence. Expert and opinion evidence. See Evidence. as to, 523, 525. False swearing-, procuring conviction and execution by, not homicide, 43. Fatal blow, killed by another after mortal wound, 35, 36. other blows will not relieve from responsibility, 35. Fears of a covi ard, not justify a homicide, 17. Federal court, jurisdiction of, where wound and death occur on high seas, 143, 261. where wound given on high seas, and death occui'S on shore, 143. Figure of speech, use of, in instruction to jury, 586. Firearms, killing in unlawful or negligent use of, involuntary manslaughter, 1G2. using in repelling arrest with naked fists manslaughter, 161. Flight, as evidence against defendant, 470. See Evidence. Former jeopardy, pleading, 3.59-361. what a sufficient plea of, 361. Fright, causing death by, 3. Gun, charging killing with, 292, 293. Handwriting, comparison of, 505. See Evidence. Hearsay evidence, admissibility of, .531, 532. See Evidence. High seas, murder on, jurisdiction over, 48, 143. See Federal Court. Homicide, by administering medicine, misadventure, 26. INDEX. 617 Homicide — Continued. by adiiiinistering poison, 25. by chance-medley, what is, 24. by depriving of lood, 41, 42. by driving carriage over child, 25. by or in I'oUowing ordinary occupation, 25. administering medicine, 26. driving carriage over child, 25. playing at lawful sports, 26. Foster's views, 26. riding horse over child, when, 25. throwing timber from building into street, 25, 26. by fright, 40, 41. by giving excessive quantity of liquor, 2-4, 162. by inciting child or madman to murder, 34. by inflicting person -with plague, 41. venereal disease, 41. by innocent agent, 5. by irresponsible agent, 2, 4, 5. by child, 34, 42. by failure to keep promise, 2. by failure to perform duty, 5. by leaving poison to be administered to another by innocent party, 34. by letting loose savage animal, 42. by madnijin, 34, 42. by misadventure, 24-28. by neglect to perform duty, 68. by performing operation, misadventure, 27. by negligence of person professing skill in certain art, murder, when, 5. by playing at lawful sports, 26. Foster's views, 26. by procuring conviction and execution by means of perjury is not, 43. by reported acts, 40-42. by administering poison at different times, 41. by riding over child, 25. by substituted agent, 4. See mpra, by irresponsible agent, by substituting poison for medicine, 5, 6. by taking life of child to save mother, 27. by working upon nerves, 40, 41. causing death, by securing conviction and execution through perjury, not, 43. directly, 2. indirectly, 2-4. defences to. See Defences to Homicide. 618 ' HOMICIDE. Homicide — Continued. definition of, 1, 2. degree of, instruction as to, 576-578. See Instruction. in attempting to arrest, on a mittimus, where defendant has given bond for costs, 159. without warrant, 158, 159. in attempting to commit suicide, is mxirder, 55. in attempting to escape from an unlawful arrest, 158. in attemjjting to kill another, 160. in committing an unlawful act less than a felony, 159. by adulterer in resisting husband's attack, 159, 160. in inducing to take an excessive quantity of liquor, 162. in preserving the peace, 161. in producing abortion, 57-60, 168. ^ in resisting unlawful arrest, 158. kinds or classes, 1, 8-32. felonious or criminal homicide, 1, 28-32. accelerating death by wrongful act, 35, 37. as to what is, 28, 33, 35. continuing effects of injury, 33. continuing offences, 44. indictment for. See Indictment. jurisdiction over. See Jurisdiction. death accelerated by accused, 37. by wrongful act, 35, 37. not relieved, by erroneous medical treatment, 37, 38. defendant responsible for lack of medical skill, 38. Massachusetts doctrine, 38, 39. by fact of mistaken medical treatment, 37, 38. by fact that existing disease would have been fatal, 37. by failure to procure medical aid, 38. by maltreatment, 37. by neglect, 37. by other assaults on deceased, 35. relieved when death results from subsequently con- tracted disease, 39. death caused, by depriving of food, 41, 42. by fright, 40, 41. by giving mortal wounds, 36. See Mortal Wounds. by mfecfinr/ person, with plague, 41. with venereal disease, 41. by procuring conviction and execution by means of perjury, not, 43. INDEX. 619 Homicide — Continued. kinds or classes — Continued. felonious or criminal homicide — Continued, death caused — Continued. by repeated acts, 40. administering poison at ditferent times, 41. by shock, 40, 41. by working' upon nerves, 40, 41. definition of, 28, 33. giving mortal vvounds, 30. See Mortal Wounds. in producing abortion. See Aboktiox. inciting a child to murder another, 34. inciting a madman to murder another, 34. intent a necessary element in, 29, 34. killing another in attempting suicide, 39. leaving poison to be administered to another, 34. letting loose a dangerous beast, 33. liability for killing by third person, 39. when not liable for killing of bystander by officer, 39. malice a necessary element, 33. murder. See Murdeu. necessary elements, intent, 29, 34. malice, 33. other blows not relieve from liability for fatal blow, 35. presence at time of death not necessary, 34. rioters liable for acts of each other, 39. where unconnected with common design, not, 40. shooting at one and killing another, 31. suicide. See Suicide. what constitutes, 28, 33, 35. wrongful act accelerating death, 35, 37. non-felonious homicides, 8-28. excusable homicides, 1, 21-28. as to what constitutes, 17, 18, 21, 22. fears of a coward not sufficient, 17. definition of, 21. distinction between justifiable and excusable homicides, 22. homicide from compulsion or necessity, 17, 18. Minnesota doctrine, 17. Tennessee doctrine, 18. kinds of, by misadventure, 24-28. See Misadventure. act must he, done in proper manner, 24. lawful in itself, 24. 620 HOMICIDE. Hoiniciile — Continued. kinds or classes — Continued. non-felonious homicides — Continued, excusable homicides — Continued, kinds of — Continued. definition of, 24. distinguished from chance-medley, 24. in correction of child, 24, 27. moderation of correction, 27. use of dangerous weapon, 27, 28. in following ordinary occupations, 25. by administering poison as medicine, 25. by adniinistering medicine by mistake, 26. by driving carriage over person, 25. by playing at lawful sport, 2G. Foster's views, 26. by riding over child, when, 25. by throwing timbers from building into street, when, 25, 26. in self-defence, 23. See Defences to Homicide, Self-Defence. what are, 17, 18, 21, 22. justifiable homicides, 1, 8-21. definition of, 8. distinction between justifiable and excusable homi- cides, 22. what constitute justifiable homicides, 8-21. homicide by officer, in execution of criminal, 9. by person other than officer, murder, 9. informality in order, effect of, 10. sentence must be strictly carried out, 9. - in execution of duty, 10-16. in dispersing mob or riot, 10. in making arrest, 10, 11. in preventing escape, 10. necessity alone justifies, 11, 12. not permissible on charge of mis- demeanor, 11, 12. in protection of justice of court, 11. in pursuit of one charged with felony, 10. homicide from compulsion or necessity, 16-18. in case of shipwreck, 18. rii^lits of seamen, 18. in case of war, 19-21. INDEX. 621 Homicide — Continued. kinds or classes — Continued. non-felonious homicides — Continued, justifiable homicides — Continued. homicide from compulsion or necessity — Continued, in case of war — Continued. McLeod's Case, '2(1, 21 n. necessity must be apparent and imminent, 16. to secure food, not, 18, 19. when not justifiable, 17. fears of a coward do not justify, 17. Minnesota doctrine, 17, 18. Tennessee doctrine, 18. homicide in preventing a felony, 12. by a father, of one who attempts to rape his daugh- ter, 12. by a husband, of one who attempts to rape his wife, 12. by a woman, of one wlio attempts to ravish her, 12. burden of proof on slayer, 12. See Evidence. what justifies, 12, 13. felonious assault, 13. ■without force, otherwise, 13. homicide in preventing misdemeanor, not, 13. killing to jirevent trespass, not, 14. homicide in protecting federal justice, 15. release on habeas corpus, 15, 16. homicide in protecting property, etc., is, when, 14. Alabama doctrine, 14, 15. Kentucky doctrine, 14. homicide hi war, 19-21. McLeod's Case, 20, 21 n. neglect to perform duty, resulting in death, 68. person assaulted must have been living, 34. death must have been produced by the alleged cause, 34. need not be sole or immediate cause, 34, 35. reducing to manslaughter, 142. through fear, 9G. through innocent agent, 5. through irresponsible agent, 2, 4, 5, 34, 42. what constitutes, 1, 2, 34. Idem sonan.s, doctrine of, 594-596. in indictment, 204-306. Ill-feeling, proof of previous, 499. See Evidence. G22 HOMICIDE. Improper devotion to a female, as a motive to a crime, 517, 518. « In the king's peace," as to, 6(5. Indictment and information, accessories before the fact charged as advisors or abettors, 130. alleging time of act causing death, 298, 299. proof need not conform to, 299. as to, 271-315. averment of, death, 301. showing where death took place, 303. defendant's sanity, 307. degree, 287, 288. injui'y causing death. 288. intent, 282, 283. of premeditation and deliberation, 285-287. " wilfully, feloniously," etc., 283-285. instrument causing death, 289-291. means and manner of homicide, 288, 289. time of act causing death, 298, 299. proof need not conform to, 299. place of act causing death, 301-303. under federal statutes, 301, 302. under state statutes, 302, 303. unlawfulness of act, 280, 281. W'eapon causing death, 289-291. weapon in defendant's hand, 291, 292. charging, killing, by poisoning, 294. by strangulation, 393. while committing another offence, 288. with bludgeon or stick, 283. with gun or pistol, 292, 293. more than one homicide by same act, 308. the offence, 276-278. at common law, 278, 279. averment that the act was unlawful, 280, 281. general rules, 276. when sufficient, 277. in abortion, 281, 282. in the language of the statute, 279, 280. INDEX. 623 Indictment and information — Continued. charging — Continued. the offence — Continued. in two counts, 278. compelling election, 278. conclusion of indictment, 307, 308. description, of deceased, 303. setting out Christian name, 803, 304. idem sonans, doctrine of, 304-306. of wound, 294-298. at common law, 295, 29G. giving dimensions of wound, 294. describing incised wound, 206. giving part of body, 294. incised wound, in case of, 296. repugnance in, 297. variance between allegation and proof, 297. essentials of, 271, 272. filing on change of venue, 334, 335. for aiding and abetting suicide, 53. proof necessary to convict under, 53. for infanticide, stating sex of child, 7. joinder of courts in, 308, 309. different modes of committing same offence, 309. different offences, 309, 310. joint indictment, 314. matters pertaining to the finding of, 272-274. necessity for, 271. not lie for omission to perform duty, 5. not lie for omission to perform promise, 2. of accessory before principal, 136. of accessories before the fact to a suicide, form of, 57. principals and accessories, 310-312. indictment of as co-conspirators, 312, 314. service of, 362. incorrect copy, effect of, 363. right to, 362, 363. time of service, 363. waiver of, 364. signature and indorsement of, 315. specifying degree, 287, 288. the caption, 274, 275. form of, 274. New York doctrine, 274, 275. what must show, 275, written caption, 274. 624: HOMICIDE. Iiidictmetit and information— Co?j?muerf. time of act causing deatli, 298, 299. proof need not conform to allegation of, 299. time of death, 300. allegations of, at common law, 300. showing where death took place, 303. where blow struck in one country and death occurs in another, 45. indictment to be found in country where blow struck, 45. to allege stroke at place of assault, and death in latter coun- try, 45. Information. See Indictment and Information. Infanticide, killing child to save life of mother, 27. stating sex of child in indictment, 7. what amounts to, 6. injuries received after birth, 0. injuries received before birth, 6. injuries received during birth, 0. by means used to assist delivery, 7. Insanity. See Defences to Homicide; Evidence. burden of proof, as to, 537, 538. proof of, 520-527, 560, 5G1. See Evidence. resulting from intoxication, as a defence, 247, 248. suicide as evidence of, 51, 62. Inspection by jury. See Jury and Jurors. right of defendant to be present, 381. Instructions to jury, as to, 575-588. as adequate cause or provocation and cooling time, 153. as to adequate cause where insulting words used towards a female relative, 148. as to alibi, 588. as to competency and weight of evidence, 581. as to evidence of accomplice, 588. as to excuse or justification, .579, 580. as to form of verdict, 586, 587. as to involuntary manslaughter, 167. as to justification, 579, .580. as to manslaughter, 578, 579. as to murder in the first degi'ee, 103. as to punishment, 581, 582. as to reasonable doubt, 571, 572, 588. as to the degree of murder, 576-578. as to verdict, 581. cliarging erroneously, 167, 575, .576. charging insufficiently, 576. contradictory, 585, 586. INDEX. 625 Instructions to jury — Continued. figure of speech, using, in, 58G. form of, as to, 582-585. misleading, 585, 586. repetition of instructions, 582. right of accused to be present during, 381, 382. sufficiency, as to form, 582-585. using figure of speech in, 586. what questions submitted, 575. written, 587. Intent, as an element in homicide, 28. criminal, supplied by carelessness, 96, 97. in murder, nature of, 67. instantaneously formed, 32. liability for homicide not intended, 39. presumed when, 28-34. to inflict bodily harm, 29. to shoot one, and shooting another, 31. to use a deadly weapon, and to kill, distinction between, 82. Intoxicating liqnors, causing death by inducing to drink, 2-4, 162. evidence as to, excessive use of, 489. See Evidence. use of, shown in defence of insanity, 522. See Evidence. Intoxication, as a defence to homicide. See Defences to Homicide. of deceased using insulting language may be considered, 145. Irregfularities in preliminary examination, as to, 266. Irresponsible agent, causing death by, 2, 5. failure to perform promise, dePoth ensuing, 2. failure to perform duty, death ensuing, 5. Jealousy, as a motive to a crime, 519. See Evidence. Judge, sentencing to death without jurisdiction guilty of murder, 9. Jurisdiction, as to court, 264. as to person, 263. as to place, 259-263. of the federal courts, 261-263. murder in fort, arsenal, etc., 261, 262. murder in military reservation by one soldier, of another, 262. murder in river, haven, etc., 262. 40 626 HOMICIDE. Jurisdiction — Continued. as to place — Continued. of the federal courts — Continued. murder on high seas, 261. where wound and death occur on high seas, 143. where wound given on high seas, and death occurs on land, 143, 260, 261. of the state courts, 259-261. at common law, 261. where blow struck on high seas, and death occurs on land, 143, 260, 261. where committed partly in one jurisdiction and partly in another, 44-48, 260, 263. proving venue, 259. where blow struck in one country, and death ensues in another, 44-48, 260, 263. custom of carrying body to jurisdiction where blow given, 46. doctrine at conmion law, 45, 46. doctrine in the United States, 46, 47. how jurisdiction determined, 48. jurisdiction in country where blow given, 45, 47. statutes conferring jurisdiction, 47. constitutionality of, 47. where offence commenced in one jurisdiction and completed in another, 260, 263. Jury and jurymen, challenge for cause, 395—406. for bias, actual bias, 395-397. implied bias, 395. for prejudice, against anarchism, 398, 399. against capital punishment, 397. against circumstantial evidence, 399. peremptory challenges, 400, 401. right to challenge, 393. reopening challenge, 399, 400. voir dire declarations, 396. defendant's list of jurors, 393-395. discharge of jury, 403, 404. drawing juiy, 389-391. duty of jury after retiring, 112. failure of jury to agree, 327, 328. groimd for bail, when, 328. impanelling jury, 389-391. instructions. See Instklctioxs to Jtry. INDEX. 627 Jury and jur>TllCll — Continued. misconduct of or relating to, after i-etiring, 41:2-415. conferring with outside parties, 412. duty of, after retiring, 412. examining things not in evidence, 413-415. reading, accounts or records of other trials, etc., 413. law books, 413, 414. during trial, 407-412. as to officer in charge, 407, 408. conduct and words of counsel, 412. jury attending church, 409, 410. jury holding conununication with outside parties, 408, 409. use of liquor by jury, 410, 411. discretion of trial judge, 411, 412. waiver of irregularities touching, 412. polling the jury, .596, 597. compromise verdict, 596, 597. duty of juror on, 596. right to, 596, qualification of jurors, 391. conviction of infamous crime, 391. pardon, 391. objection to be taken, when, 392, 393. when objection to be taken, 392, 393. right to trial by, 385-387. waiver of, 387-389. separation of jury, 404-407. after retiring, 407. during meals, etc., 406, 407. during trial, 404, 405. permission to juror to visit sick relative, 405, 406. summoning jury, 389-391. swearing the jury, 401-403. form of oath, 402, 403. in presence of accused, 401. re-swearing, 401. using real name, 401, 402. what record must show, 403. when sworn, discretion of trial court, 402. to determine whether there was deliberation and cooling time, 70. view of premises by jury, 534, 535. Justice of Supreme Court, homicide in protecting, 514. Justification, instruction as to, 579, 580. See Instruction. 628 HOMICIDE. King's peace, in the, 66. LiCtting loose a dangerous beast, and death ensuing, it is criminal homicide, 34. Limitation of action, in prosecutions for manslaughter, 258. in prosecutions for murder, 257, 258. statute must be pleaded, 256. time within which prosecution to be brought, 255. when statute ceases to run, 257. Liquor, killing by giving excessive quantity in joke, 162. See Man- slaughter; Practical Joke. Lunatic, may commit suicide during lucid interval, 52. Lying in wait, to commit trespass, homicide, 106. Madman, inciting to kill another, murder, 34. Malice, aforethought, definition of, 83. what constitutes, 83. antecedent, presumed ground of killing, when, 78. antecedent quarrel, presumption of malice from, 78. question for jury, 78. burden of proof as to, 535-537. express, effect of, 1 71., 2. what is, 68. implied, effect of, 1 n., 2. in murder. must exist at time of homicide, 68. requisites of, 67. inferred from carnal intercourse with girl under ten, 41. intoxication may be shown as affecting, 244, 245. killing with malice is murder, 28. not disproven by provocation, 91 . not proved merely by selecting and using deadly weapon without lawful excuse, 83. presumed, from act evincing "abandoned and malignant heart," 77. from act of killing, wiien, 76. from administering poison, 84, 106. from antecedent quarrel, 78. question for jury, 78. from assault, 88, 89. INDEX. 629 Malice — Continued. presumed — Continued. from carnal intercourse with a girl under ten, 41. fi"om cruel and inhuman punishment, 89. from deadly weapon used, 8(», 81. See Deadly Weapon. from husband following wife and killing paramour, 90. from interfering between combatants and needlessly killing one, 77, 78. from lying in wait, 106. from making of dynamite bombs, 78, 79. rule in Colorado, 79. rule in Louisiana, 80. from means used, 80, 83. use of deadly weapon, 80, 81. See Deadly Weapon. ■when malice presumed, 82, 83. from mutual combat with deadly weapons, 90. from pre-arranged quarrel, 86, 87. from purchasing and carrying deadly weapons, 466. custom in community does not affect the rule, 466. from pursuit on quarrel, 85, 86, 88. from renewal of quarrel, 87, 88. from surrounding circumstances, 84. from threats before the killing, 84, 85, 461. from threats coupled with a condition, 85. from use of ineans calculated to produce death under peculiar circumstances, 83, 84. from violent assault on pregnant woman, 84. to continue, 91. previous malice not presumed in killing, when, 157. when presumed, 77. previous malice not presumed in killing, when, 157. purchasing and carrying deadly weapons shows, 466. custom of community does not affect the rule, 466. threats of defendant shows, 84, 85, 461. Maltreatment, of wound will not relieve from liability for giving, 37. Planner of homicide, averring in indictment, 288, 289. Manslaughter, accidentally firing into a crowd, 94. accidentally killing, antagonist by a chance blow at fist fight, 161. by firing gun into street, 162. by firing into crowd, 94. by heedless act, 96. by raising heavy article over crowded street, 162. by riding unruly horse into crowd, 162. 630 HOMICIDE. Manslaughter — Continued. accidentally killing — Continued. by throwing stones into street, 162. by use of weapon, when not justified, 161. in lawful sport not dangerous, 162. in the performance of an unlawful act, not felonious, 161. in shooting at poultry, intending to steal, 1G2. in the improper performance of a lawful act, 162. in the negligent performance -of a lawful act, 162. in the negligent use of firearms, 162. in proper performance of an act not felonious, 161. in the unlawful use of firearms, 1G2. act committed heedlessly, and death resulting, 96. adequate provocation or cause for, adultery with slayer's wife, 154. must be caught in act, 155. as to what is, 143. assault^ as to what constitutes, 149. blow with fists, 151. blow with pole, 152. blow with walking-stick, 150, 151. blow with weapon, 156. grabbing hold of, not, 149, 150. instructions as to, 149, 150. See Instructions. striking with fists, 151. striking with pole, 152. striking with walking-stick, 150, 151. striking with weapon, 156. banter, by deceased is, when, 151. followed by encounter, 153, 154. civil trespass, is not adequate cause justifying killing, 157. killing in effort to eject, 158. killing in heat of passion, 158. criminal intimacy, ■with a female in charge of the slayer, 155. with a female relative, 155. forfeiting bail, and threats of resistance, not, 153. instructions as to, 153. See Instructions. insulting words or conduct, cooling time, effect on, 149. See Deliberation and Cooi> I NO Time. in defendant's absence, 148. INDEX. 631 Manslaiij?hter — Confin ued. adequate provocation or cause for — Continued, insulting wonh or conduct — Continued, indecent proposals, to defendant's daughter, 147. to defendant's female relative, 147. to defendant's wife, 148. towards defendant's daughter, is, when, 147. towards defendant's female relatives, is, when, 147. towards defendant's wife, 148, what is, within the rule, 147. killing another, 154. mutual combat, 155. See Mutual Combat, equal terms necessary to, 156, 157. provoking combat with malicious intent, not, 156, 157, what is, 156. when sought for purpose of killing, not, 155-157. passion, as criterion, 153. engendered by assault, 146. possession of stick, not, 153, preparing w'eapon, not, 153. preventing defendant's departure is, when, 154. shooting at defendant on another occasion, not, 153. stopping defendant on public highway is, 154, 157. words followed by encounter, 153, 154. wound given by deceased is, when, 151. administering drugs to procure abortion, 167-169. administering poison to secure submission to sexual intercourse, 107. causing death, by administering diugs to produce abortion, 167-169. by administering poison to secure submission to sexual inter- course, 107. by assault, 167. by attempt to produce abortion, 167, 168. by carelessness or negligence, in administering medicine. 164. in attempting to make an illegal arrest, 159. in driving or controlling vehicle, 164, 16.5. in management of vessel, 164, 166, 167. in recklessly handling firearms, 164, 165. in steamboat navigation, 164, 166. 167. in suddenly applying brake to hand-car or other vehicle, 165. in omission of duty, by officer, in charge of coal mine to give ventilation, 163. in charge of a vessel to keep proper lookout, 163. 032 HOMICIDE. Maiislaug-hter — Continued. causing death — Continued. by carelessness or neijligence — Continued. in omission of duty — Continued. hy officer — Continued. of railway tender to give proper signal, 163. of street-car conductor to keep proper lookout, 164. of switchman to turn proper switch, 103. responsibility must be upon him exclusively, 164. in use of firearms, 165, 166, 226. by discharge of a pistol in sport, 166. in attempting to frighten another, 165. by discharging gun into highway in dark, 165. by discharging gun to scare boys in melon patch, 165. by discharging pistol believed to be unloaded, 166. in use of poor and defective material in building, 164. by burning boat in racing, 106, 167. hy failure, of officer of coal mine to give ventilation, 163. of railway tender to give proper signals, 103. of street-car conductor to keep proper lookout, 164. of switchman to turn proper switch, 103. to keep proper lookout, by officer of vessel, 162. by street-car conductor, 164. by fright, 3. by giving excessive quantity of liquor, 3, 162. by gross carelessness, 162. • by intentionally inflicting wound in assault, 167. by negligently administering poison, 105. by obstructing railway track, 170. by omission of duty, 2, 5, 162. by practical joke, 162. building fire over drunken man, 162. duelling, 102. giving an excessive quantity of liquor, 3, 162. shooting a gun to frighten, 102. * striking horse to annoy rider, 162. throwing stones into a coal-pit in sport, 162. upsetting a cart purposely, 162. by recklessly, shooting a person attempting to escape from illegal arrest, 170. shooting a person under arrest, 170. by rudeness in sport, 164. by striking in attempting to escape from illegal arrest, 170. by threats causing fright, 109. INDEX. 633 Manslaug'hter — Continued. causing death — Continued. by undue correction by person in authority, 169, 170. indirectly, 3, 4. cooling time, 153. See Deliberation axd Cooling Time. definition of, 139, 141, 142, 142 n. difficulty begun by defendant, manslaughter, when, loO, 151. distinguished from murder, 139, 140. in first degree, 143. Alabama rule, 143. instructions. See Instkl'Ctions. as to, 167, 578, 579. intent to kill not necessary, when, 143. interview sought by defendant, 146. killing. adulterer taken in act, 12. in attempting. to arrest on mittimus, when manslaughter, 159. to arrest one charged with a misdemeanor, 12; to arrest without a warrant, 158, 159. to make an illegal arrest, 59. to produce abortion, 167, 168. in performance of an illegal act, 24. in resisting arrest, 11. illegal arrest in ordinary manner, 94. officer in attempting to escape from arrest, 158. officer in resisting illegal arrest, 158. officer on duty not knowing he is an official, 92. lying in wait to commit trespass, 106. limitation of prosecution for. See Limitation of Action. mutual combat, 155. See Mutual Combat. equal terms, 156, 157. provoking combat, intent, 156. moral character of, 140, 141. negligence or omission of duty causing death is, 68. no accessories before the fact in, 140. previous malice not presumed, 157. See Malice. provocation causing passion, 143. See Adequate Provocation. cooling time, 145, 146. See Deliberation and Cooling Time. rule in Georgia, 145. rule in New York, 145. what sufficient, 143, 144. words towards slayer not, 144, 145. intoxication of deceased, 145. reducing homicide to, 142. cooling time prevents, 145, 146. 634 HOMICIDE. Manslaiig-hter — Continued. shootiug, attacking officer, 152. father's adversary in mutual combat, 156. in defence of own house, 152. unarmed adversai-y, 1.52. slaying deceased in own house is, when, 157. voluntary, 141. what constitutes, 2, 101. Marital infidelity, as a motive to homicide, 518. Ma,xiins. See AVords, Phrases, and Maxims. Medical treatment, mistaken, not relieve from felonious assault, 37. Means and manner of homicide, averring in indictment, 288, 289. Mental condition, conduct and appearance as indicating, 409. See Evidence. Mercy, recommendation to, in verdict, 594. See Verdict. Mistake iu medical treatment, does not relieve from felonious assault, 37. Misdemeanor, killing in attempting to arrest for, is murder, 11. killing in prosecuting conspiracy to commit, 128. co-conspirators not liable, 128. Mittimus, does not justify officer in attempting to make arrest, when, 159. bond for costs, 159, 100. Mob, confessions made through fear of violence of, 553. See Confessioxs. killing in dispersing, justifiable, when, 10. Mob violence. See Mob. Moral insanity, as a defence to homicide, 330. See Defences to Homicide. Motive. See Intent. immunity from prosecution, 510. See Evidence. intoxication may be shown as affecting, 239, 240. See Defences to Homicide ; Intoxication. Murder, a homicide produced by joint blows, 133. murder in party striking last blow, 133. abortion resulting in death is, when, 57, .58, 168. banter does not reduce homicide to manslaughter, 151. causing death. See Kii.i.ini; (this title). by attempting abortion, 57, 58. INDEX. 635 , Murder — Continued. causing death — Continued. by compelling man to jump from moving train, 96. by giving infant overdose of laudanum, 84. by gross carelessness, 97. by maliciously administering poison, 105. by misconduct, 97. by placing infant child in perilous situation, 68. hij recklessly, burning a steamboat while racing, 98. compelling a man to jump from a moving train, 96. driving a vehicle over a child, 97. firing a gun into a crowcl, 97. to frighten a horse, 95. ^vith fatal effect, 97. forcing seaman not fit for duty to go aloft, 98. giving an infant an overdose of laudanum, 84. pointing a loaded gun at another, 97. without examination to learn whether loaded, 97. running dangerous machinery, 97. steering a vessel, 97. throwing wood or other missile into street, 97. by substituting poison for medicine, 5, 6. by wilful cruelty, 68. by wilful omission of duty, 68. indirectly, 2-4. of mother, by attempting to kill child, 168. by using drugs or medicine, 168. through substituted agent, not, when, 4-6. compelling a man to jump from a moving train, death ensuing, 96. death of child after birth because of potions administered or bruises received while in the woml), is, when, 168. definition of, 65. at common law, 65. in the United States, 65. degrees of, in (/eneral, at common law, 98. distinguished, 98. no presumptions as to degree, 99. under statute, 98. in California, 99. in Delaware, 99. in Iowa, 99. in Maryland, 100. in Michigan, 100. in Minnesota, 100. G36 HOMICIDE. Murder — Continued. degrees of — Continued. in general — Continued. under statute — Continued. in Missouri, 100. in Nevada, 101. in New Hampshire, 101. in Pennsylvania, 101. in Tennessee, 102. in Texas, 102. first degree, 102-118. bailable, when. See Bail. definition of, 102-104.- instruction to the jury respecting, 103. killing a woman in struggling to rape her, 127. killing by administering poison for the purpose of stupe- fying, 107, 108. to obtain possession of property, 107. to obtain sexual intercourse, 107, 108. killing in perpetrating forcible felony, 102, 106, 127. maliciously administering poison, 105. premeditation and deliberation necessary to, 66, 104. what constitutes premeditation, 104, 105, 107, 119. See Deliberation and Cooling Time; Premeditation. rule as to, in, Alabama, 108, 143. Arkansas, 108. California, 108, 109. Florida, 109. Indiana, 109. Iowa, 109. Kansas, 109, 110. Massachusetts, 110. Minnesota, 110. Missouri, 110-112. Nebraska, 112. . , New Jersey, 112. New York^ 112-114. Oregon, 114, 115. Pennsylvania, 115, 116. Tennessee, IKi, 117. Texas, 117, 118. West Virginia, 118. rules for construction of statutory provisions, relating to, 104-106. second degree, 118-125. definition, 118. INDEX. 637 Murder — Continued. degrees of — Continued. second degree — Continued. design or purpose to kill, former, 119. See Intent. formed in midst of conflict, 119. essentials of, rules as to, impracticable, 119. includes what, 118, 119. rule as to, in, Arkansas, 120, 1-21. California, 121. Delaware, 121, 122. Iowa, 122. Missouri, 122. 123. Tennessee, 123, 124. Texas, 124. Wisconsin, 124, 125. what is included in, 118, 119. other degrees, 125. in New Mexico, 125. in Wisconsin, 125. deliberation. See Deliberation and Cooling Time. exposing sick and weak person to cold, 68. firing into crowd, 94, 97. gross carelessness or misconduct resulting in death, 97. in federal jurisdiction, what killing is, 66. in first degree, bailable, when. See Bail. in the king's peace, 66. inciting madman to kill another, 34. interfering between combatants and needlessly killing one, 77, 78. judge passing sentence without jurisdiction, 9. killing, a child by injury from use of drugs or instruments while in womb, 168. a person on firing to frighten a horse, 95. after proposed combat, 91. alien enemy not in arms, 66. by a pickpocket pursued by a citizen, 96. by administering poison, 84, 105. by compelling person to jump from moving train, 96. by exposing sick and weak person to severe cold, 68. hy firing a gun, into a crowd, 94, 97. to frighten a horse, 95. by giving an infant an overdose of laudanum, 84. by maliciously administering poison, 105. by setting spring-guns, 214. by robbers pursued and overtaken, 96. 638 HOMICIDE. Murder — Continued. killing — Continued, hy wilful, cruelty to child, 68. omission of duty, 68. bystander in shooting affray, 95. deliberately, wife's paramour, 90. deserters, 66. in assault to do bodily harm, 88. otherwise where there is no intent to harm, 89. in attempting to arrest one charged ^Yith a misdemeanor, 11. in attempting to make an illegal arrest, 159. in committing a felony, 9.5, 129. in carrying away a vessel, 95. under New York tramp act, 96. in cruel and inhuman punishment, 89. in executing conspiracy to carry away a vessel, 95. in mutual combat with deadly weapon, 90. in prosecution of conspiracy. See Conspiracy. to carry away a vessel, 95. to commit a felony, 129. in resisting assault is, ^Yhen, 13. in resisting arrest, 13. in retreat and pursuit on quarrel, 85. in revenge for assault upon defendant's son, 89. in the king's peace, 06. what is, 66. mother in attempting abortion. See Abortiox. in attempting to kill child by use of drugs or instruments, 168. needlessly, on interfering between combatants, 77, 78. officer, attempting to arrest without a warrant, not, when, 158, 159. knowledge of right to arrest without, 92. in attempting to escape from a lawful arrest, 158. in the discharge of his duty, 92. acting under void process no mitigation or excuse, when, 92. by escaped convict, 93. by using deadly weapon, 93. knowledge of right to arrest without a warrant, 92. in resisting lawful arrest, 158. on interfering between combatants, 77, 78. on pre-arranged quarrel, 86. on renewal of controversy, 87, 88. one person in attempting to kill another, 94. in attempting to kill an officer, 05. one who assaults by laying hands on, 197. INDEX. 639 Murder — Continued. killing — Continued. persons with safe conduct, 66. prisoners of war, GO. to prevent trespass, 14. ■wife's paramour, deliberately, 90. with specific malicious intent, 67. See Intent. nature of the intent, 67. requisite of malice, 07. See jNIalice. must exist at time of killing, 08. limitation of prosecution for. .See I^i.aiitatiox of Action. malice. See Ma lick. maliciously administering poison, 105. nurse producing death by giving infant laudanum, 84. on the high seas, I . Jurisdiction of, federal court, 143, 201. the offence, 201. wound and death must take place on high seas, 143. wound on high seas, and death on shore, 143. passing sentence of death without jurisdiction, 9. placing tender infant in perilous situation, 08. premeditated design, 06. ^ee First Degree (this title). what is not, 119. See Premeditation. principals and accessories. See Principals and Accessories. suicide is self-murder, 52. aiders and abettors in, guilty of murder, .52. taking the life of another at his request is murder, 60, 61. ■what killing is murder, as to, 2. in federal jurisdiction, 00. who may be murdered, 06, 07. wilful omission of duty causing death, 68. ■wilful cruelty to child producing death, 68. Mutual combat, accidental killing third person, manslaughter, 160 as to, 155, 150. does not raise right of self-defence, 202, 203. equal terms, 156, 157. notice of desire to withdraw from, 202. effect of such notice on subsequent killing, 202. provoking combat, 150. intent of slayer, 156. shooting father's antagonist in, is voluntary manslaughter, 156. slaying another in, is manslaughter, 155. otherwise where encounter sought as an excuse for the killing, 155, 150. ()40 HOMICIDE. Mutual combat — Continued. sought for the purpose of kilHng, murder, 155, 156. what is, 156. equal terras of combat, 156, 157. -where sought for the purpose of killing, 155, 156. Neg^ative evidence. See Evidence. of character, 485-489. Negligence, causing death, by person professing skill in certain arts, 5. will not excuse from felonious assault, 37. Officer, killing. See Murder. showing to have been in discharge of his duty at time of killing, 509. See Evidence. Opinion evidence. See Evidence. as to, 523-525. Other crimes, when may be shown, 511-513. See Evidence. Overt act, must be shown where there have been threats, 433. See Threats. Perjury, causing conviction and execution by means of, not felonious homi- cide, 43. Persons with safe conduct, killing, is murder, 66. Physical superiority, of defendant, 483. See Evidence. Physician's skill, accused responsible for, 38. Pistol, charging killing with, 292, 293. Plea. See Arraicnmext and Plea. Poison, administered at different times, causing death, 41. See Continuing Okfknces ; Hepeated .\cts. charging killing by means of, 294. evidence against person as accessory, 134, 135. leaving, to be administered to another, 34, 105. maliciously administering, 105. nurse administering laudanum to infant, murder, 84. preliminary examination or hearing', adjournment of, 267, 26«. INDEX. 641 Preliminary examination or hearing — Continued. by whom to be held, 200. powers and duties of offices holding, 266. securing attendance of witnesses, 266, 267. effect on right to, of finding indictment, 267. irregulai'ities in, 266. effect 00 commitment, 266. reducing testimony at, to writing, 268. re-examination, 266. •when to be had, 266. right to,. 265. effect on, of indictment, 267. testimony taken at, as evidence on trial, 509. reducing to writing, 268. manner of, 268, 269. •warrant of commitment on, 269. ■when to be held, 267. adjournment of, 267, 268. Premeditation. See Evidence ; Murder, First Degree. and deliberation, necessary to murder, 104. averment of, 285, 287. what constitutes, 104, 105, 107. premeditated design in murder, 66. See Intent. Principals and accessories, accessories, kinds of, after the fact, 136. affirmative act necessary to constitute, 136, 137. effect of relation, 137. yviie cannot be at common law, to husband's crimes, 137. ■who are, 136. before the fact, 135. advisers or abettors, 136. See Aiders and Abettors ; Suicide. affirmative act necessary to constitute, 135. aid or encouragement given must continue, 136. comnmnication must be direct, 136. liability of, 135, 136. may be indicted, tried, or convicted after principal, 136. or before principal, 13G. means prescribed need not be used, 136. none in manslaughter, 140. standing upon watch, 134. •who are, 135. degree of concert necessary, 126, 41 642 HOMICIDE. Principals and accessories — Continued. accessories — Continued. kinds of — Continued. punishment alone, affected by the degree of, 126. standing upon watch, 134. acts of one bind all, 126. definition of, 125, 126. degree of concert necessary to constitute, 126. distinction between, abolished by statute, 128, 129. joint effect of blows, murder in giver of last, 133. loaning weapon and encouraging shooting makes one a principal, 133 n. person present assisting in homicide a principal, 133. loaning pistol and encouraging shooting, 133 n. principals, bystander taking part, not, 134. concert in assault necessary, 134. design to encourage and incite, 134. kinds, in first degree, 126-128. definition of, 127. doing act through medium of child, 34. deposited poison, 127. innocent person, 127. insane person, 127. homicide in prosecuting conspiracy to rob, 127. need not be actually present, 177, 178. in second degree, 128. definition of, 128. malice not necessary to, 128. mere presence or sanction does not constitute, 128. mere presence does not constitute, 134. standing upon watch, 134. taking part in affairs connected with, does not make, 134. punishment alone affected by the degrees of, 126. who are aiders and abettors, 133 n. Prisoners of war, killing of, murder, 66. Provocation, antecedent malice, 78. killing presumed to be on, when, 78. blow with walkiug-stick not sufficient to justifj'^ killing, 150, 151. fresh, not presumed, 91. insulting language, 73, 83. used six hours before not sufficient, 73. mere words not sufficient to justify use of deadly weapon, 83. never disproves malice, 91. passion after intent not reduce grade of crime, 75. INDEX. 643 Proving" alibi. See Evidence. as to, 572, 574. Punishment, assessment of, in verdict, 592. See Verdict. constitutionality of statute providing for, 592. instructions as to, 581, 582. See Instructions. Purpose to kill. See Murder. Quarrelling, proof of previous, 499. See Evidence. Reasonable doubt, " Anarchists' Case," the, 572. definition of, 670, 671. doctrine of, 659-674. instructions as to, 571, 572, 588. See Instructions. material facts charged, proof of, 571. meaning of term, 670, 671. proof of material facts charged, 571. proving alibi, 572, 574. Reconiniendation to mercy, in verdict, 594. See Verdict. Right to pursue assailant, as to, 206, 207. See Defences to Homicide. Repeated acts, causing death by, 40, 41. liability for, 41, 42. Res gestae. See Evidence. Rescue, homicide in resisting, 216. Re-trial. See Disagreement and Re-trial. as to, 589. Revenge, as a motive for a homicide, 519. Revolutionary organizations, adopting writings of others, 492. proof of such adoption, 492. See Evidence. Riot, homicide in dispersing, justifiable, when, 10. Rioters, liability of all for homicide by one, 39. where homicide unconnected with common design, 40. party committing deed alone responsible, 40. Riotous or rebellious assembly, homicide in dispersing, justifiable, when, 10. Safe conduct, killing persons with, murder, 66. 644 HOMICIDE. Secret organization, promotion of plans of, as a motive for a homicide, 514, 515. Self-defence. See Defences to Homicide. proving, 559. See Evidence. Sentence, cannot be changed even by sovereign, 10. may be remitted by sovereign, 10. to death without jurisdiction, murder, 19. Sexual intercourse, causing death, by administering poison to secure consent to, 107. by inocuhiting with venereal disease, 41. Shooting", at one person and killing another, 31. by carelessly pointing loaded gun at another, 97. into a crowd, 97. to frighten a horse, 95. with fatal effect, 97. Sick person, exposing, to cold, and thereby causing death, is murder, G8. Slvilled workmen, as experts, 5"J5. See Evidence. Socialistic principles, proof of, 490. See Evidence. Soninanibulisni, as a defence, 251-254. proof of, 490. See Evidence. Sovereign, sentence may not be changed by, 10. sentence may be remitted by, 10. Sport, rudeness in, resulting in death, 164. voluntary manslaughter, 164. Spring-guns, setting, for protection of property, 214. Standing upon watch, renders guilty as accessory, 1^34. Statute of limitations. See Limitation of Action. Statutes prescribing degrees of murder, as to, 99-102. rules of construction, 104-106. Stick, charging killing with, 293. INDEX. 645 strangulation, chavgiiig killing by, 293. Subsequently contracted disease, death from, relieves from felonious assault, 39. Substituted agent, causing death h}-, 4-6. Substituting poison for medicine, causing death by, murder, 6. Suicide, accessories before the fact, 56. absence when act perjtetrated, 57. effect on criminality, 57. indictment as, 57. form of indictment, 57. accidentally killing one who attempts to prevent, is murder, 55. aiding and abetting, 52, 53. advising another to commit, 52, 56. agi'eement to suicide together, 52, 54. survivor guilty of nuirder, 54, 55. presence and acquiescence in suicide, 55. as evidence of insanity, 51, 52. attempt to commit, criminal, 55, 60. common law doctrine of, 49, 50. definition of, 49. high rate of, among soldiers, 50 n. killing another in attempting, murder, 39, punishment for, burying at cross-roads, 61. burying with stake driven through body, 61 n. denying Christian burial, 61. in Bracton's time, 62. in the United States, 62, 63. Irving Biowne on, 62 n., 63 n. under insane impulse, 50, 51. who may commit, 50. lunatic in lucid interval, 52. Sunday, verdict rendered on, valid, 590. See Verdict. Threats. See Evidence, of Threats. causing fright resulting in death, involuntary manslaughter, 169. fears must be well grounded and reasonable, 169. of third persons, 494. after the homicide. 496, 497. before the homicide, 494, 495. show deliberation and malice, 85. 646 HOMICIDE. Tracks, comparison of, 505. See Evide^jce. compelling to make, 506. experiments with, out of court, 507. Transcript, filing of, on charge of venue, 334, 335. Trespass, civil, on property not adequate cause to reduce killing to man- slaughter, 157. killing to prevent, murder, 14. upon personal property does not justify killing on ground of self- defence, 202. Trial, continuance, 370. to secure counsel, 370, 371. discharge of jury on failure to agree, 336, 337. See Jury and Jurymen. fixing time of, 367, 368. joint defendants, determining order of trial, 373. separate trials, 372, 373. discretion of trial -judge, 372, 373. waiver of, 373. when to be demanded, 373. waiver of separate trials, 373. when separate trials to be demanded, 374. jury trial. See Jury and Jurymen. of accessory before principal, 136. postponement of, 368, 370. when postponement refused, 370. presence, of counsel for defendant, 384. of defendant, 375-384. presumed, 384. right to be present, 375-378. attending on inspection, 381. during delivery of testimony, 381. during instruction to jury, 381, 382. forfeiture of right, 378. on inotion, for new trial, 383, 384. in arrest of judgment, 383, 384. temporary absence, 380. waiver of right, 379, 380. ■what the record must show, 376, 378. ■when verdict is rendered, 382, 383. INDEX. 647 Trial— Continued. right to be present, by counsel, 384. in person, 375-384. See Presence (this title). right to speedy trial, 365, 366. the jury. See Jury and Jurymen. Uncontrollable impulse, killing under, 228. Variance, of verdict from indictment, fatal, 591. Venue, change of, 331. application for, 331. counter affidavits on application for, 333, 334. filing indictment and transcript on, 334, 335. reasons for change, 331. Georgia doctrine, 331, 332. proving, 259, 542. See Evidence. Verdict, adjournment of court sine die, 590 n. effect on verdict not yet rendered, 590 n. assessing punisliment in, 592. constitutionality of statutes providing for, 592. bad grammar and spelling, 594. effect of, 594, 595. compromise verdict, 596. effect of, 596, 597. drunken man in jury room, effect on verdict, 412 n. errors, in grammar, 594. in spelling, 594. idem sonans, 594. what words are, 594-596. filing of, on charge of venue, 334, 335. form of, 591. amending, 591, 592. instructions as to, 586. See Instructions. specifying degree of guilt, 591. idem sonans, what is, in verdict, 594-596. what words are, 595, 596. instructions as to, 581. See Instructions. naming defendant in, .593. of guilty of murder, 412 n. not set aside because drunken man found in jury room, 412 n. presence of accused when rendered, 382, 383. 648 HOivnciDE. Verdict — Continued. recommendation to mercy, 594. rendered on Sunday, 590>591. specifically acquitting of higher or lower degrees, 592, 593. specifying, degree of guilt, 591. the count sustained, 593. time and manner of rendering, 590. in open court, 590. on Sunday, 590, 591. to be rendered in open court, 590. variance from indictment, 591. effect of, 591. View of premises by jury, as to, 534, 535. Walkinjif-stick, blow with, not adequate provocation to justify killing, 150, 151. See Provocatiox. Weapon, as evidence, 534. See Ev^idence. proof as to, 503-505. See Evidence. Witnesses. See Evidence. credibility of, 416. competency of, 416, 418. co-defendant as witness, 418, 419, 420. husband and wife as witnesses for each other, 419. medical experts as witnesses, 419, 420. non-experts as witnesses, 527. See Opinion Evidence. list of, for defendant, 416. non-experts as, 527. number of, 417, 418. qualifications of, 416. separating, 417. Words, not adequate provocation for homicide, 144. Words, phrases, and maxims, apres le fait, 45. chance-medley, 24. corpus delicti, 421, 425, 535. felo de se, 49, 52, 58, 59, 60, 61. hcBC voluntas non intellecta fuit de voluntate nudis verbis aut scriptis, propalata, sed mtindo inanifestato fuit per apertum factum, 29. idem sonans, 594, .595, 596. inforo domestico, 24, 27. inforo conscrentife. 43. in loco parentis, 89. INDEX. 649 Words, phrases, and maxims — Continued, in rerum nalura, 1 n. " in the King's peace," 66. " in the peace of the State," 66. " malice aforethouglit," 83. malum in se, 24, 55. malum prohibitum, 24. " murder " as a term of art, 278. non compos mentis, 51. nolo contendere, 358. " premeditation " defined, 104, pro in/or turn inn, 25. qui facit per alium, facit per se, 42. se defendendo, 183, 187. se et sua defendendo, 23. voir dire, 396. voluntas reputabatur pro facto, 29. Wounds, causing congestion of the brain, 37. liability for, 37. death resulting from subsequently contracted disease, 39. relieved from liability by, 39. erroneous medical treatment, 37, 38. defendant responsible for physician's want of skill, 38. Massachusetts doctrine, 38. given upon high seas, 48. jurisdiction over, 48. improper treatment, 37. does not relieve from liability, 37. defendant responsible for physician's want of skill, 38. Massachusetts doctrine, 38. maltreatment of, 37. does not relieve from liability, 37. defendant responsible for physician's skill and atten- tion, 38. Massachusetts doctrine, 38. mistaken medical treatment, 37. does not relieve from liability for, 37. , defendant responsible for skill, care, etc., of physician, 38. Massachusetts doctrine, 38. mortal wound, killing by another after giving, 35. effect of, on liability for, 35, 36. liability for, although person would have died from other causes, 36. proof necessary to convict, 36. 650 HOMICIDE. Wounds — Continued. upon high seas, 48. jurisdiction over offence, 48. See High Seas. Writings of others,- adoption of, by revohitionary organization, 492. proof of, 492. See Evidence. "^