the streets of Dumfries, as if about to engage in a personal conflict, but before any blow they were separated. They had both remained in town from that time until between one and two o'clock of the same day, but how employed it did not appear; about the latter hour, the prisoner was seen passing a tavern on the street, about four hundred yards distant from the spot where the murder was committed, and, on being accosted by the witness, who was in the said tavern, he said he had been much injured by a man, whose name he knew not, who had kicked him in the face; and the witness saw on the side of the prisoner's nose a fresh wound, from which the skin had been abraded to the superfi cial extent of a four-pence-half-penny, or nine-penny piece. The prisoner seemed angry, and said he was determined to kill the man who had thus injured him. He then proceeded on about thirty yards farther, to the house of a butcher, and calling out the wife of the butcher, who was then at dinner, told her that her father (who was also concerned with her husband in the trade of a butcher,) had sent him to borrow her husband's butcher knife, which she immediately delivered to him. The shop where this took place was about four hundred and thirty yards from that where the murder was committed. Upon his return in about five or six minutes from the last mentioned shop with the knife in his hand, as he was repassing the tavern before mentioned, a short conversation took place between him and the first mentioned witness, in which he reiterated his determination to kill the deceased, and was warned against the act by the witness. He proceeded along the same street about three hundred yards farther and stopped at the ware-room of a merchant, where he asked the young man who was in attendance, for a steel to sharpen the butcher's knife, declaring his intention to kill the man who had injured him. About twenty yards from the ware-room he turned into a cross street, and was heard denouncing loud threats of vengeance against the deceased, and declaring his intention to kill him. At the further corner of the first square, after entering the cross street, the prisoner found the deceased on the steps of a house, with his head hanging on his breast, apparently asleep. He roused the deceased by kicking him, and as the deceased, who was unarmed, and made no attempt at resist ance, rose, the prisoner said he had come to kill him, and as the deceased answered that "he reckoned no man wanted to kill him," the prisoner thrust the butcher's knife into the breast of the deceased. The deceased cried out, "You have stabbed me," and the prisoner replied, "damn you, if you don't hush, I will put the knife into you again." The deceased walked about one hundred and fifty yards, fell, and expired. The prisoner immediately going into a shop where he had a bundle, took it up, and walked quietly out of town to a house about two miles distant, where he was domesti cated. To the owner of this house he related the incidents, and said he had given the deceased his death wound, and would keep out of the way some days, until he could ascertain whether or not he was dead. The prisoner and the deceased were both laborIt was proved that the deceased was a turbulent man, and reputed a hard fighter. Nothing was said of the character of the prisoner. It did not appear that they had ever been together until the day preceding the death, when they were at a cock-fight; but whether they had any association there did not appear. At the time of the murder the prisoner either did not know, or had forgotten the name of the deceased. Under the charge of the court a verdict of murder in the first degree was rendered. Burgess v. Commonwealth, 2 Virginia cases, 484.

ers.

In another case under the Pennsylvania act, it appeared that the prisoner was an hon. est and industrious man, but addicted to intoxication, and when in that state was quarrelsome. It also appeared that his wife occasionally drank too much; and that on the day of the fatal occurrence they had fallen into a drunken squabble. During the quarrel the wife threw several stones at him, one of which struck him on the arm. A few moments after they were seen struggling together, but soon after the wife was discovered fleeing with her infant in her arms, the prisoner pursuing her with an axe in his hand. When he came within reach of her he aimed a blow at her which fell on the head of the child as it lay upon the wife's shoulder, and caused a mortal wound, of which the child died. The prisoner soon recovered himself and showed many signs of repentance and manifested much distress at the manner of the child's death. The judge who tried the case, in the course of his charge to the jury, said, "We now come to this point: what was the intention of the prisoner at the bar, when he killed Daniel Dougherty, his child? for, if his intent was to kill his wife, and killing her would have been murder in the first degree, killing his child will also be murder in the same degree; as much as if he had prepared a cup of poison for his wife and his child had drank it. You, however, are in this case to judge of the law and facts. If you are of opinion the injury the prisoner received from his wife throwing stones at him, and hitting him, kept

his passion boiling until he gave the fatal blow, we think it your duty to find him guilty of manslaughter. But if you are of the opinion his passion had time to cool, or in fact had cooled, after the assault on him by his wife, it is your duty to convict him of murder in the first degree." The verdict was manslaughter. Commonwealth v. Dougherty, 7 Smith's Laws, 695.

In Tennessee, a verdict of murder in the first degree was sustained, where it appeared that the deceased was killed on the night of the 3d of October, 1841; that the prisoner and he had had angry difficulties from a period long anterior up to the time of the commission of the offence, which resulted from mutual wrongs done or charged; that the prisoner accused the deceased of having harboured his wife, to his great personal injury, and the deceased accused him of having fired his house; that on the 11th day of September, 1841, not many days before the murder, the prisoner left the country in a steamboat, with threats in his mouth of vengeance for his injuries, which he declared he would have before he left; that one week before the murder, he returned and kept himself so concealed that but one person saw him certainly, others saw what they took to be his tracks, and one, a person in disguise, whom he supposed might have been him; that on the night the deceased took possession of the building which had formed the subject of the controversy between them, he was killed, cowardly and treacherously; and that the prisoner immediately fled the country again, and being captured at Memphis, denied that he had been in the county of Obion since his first departure on the 11th of September, but admitted that he had returned up the river to within fifty miles of the residence of the deceased. Stone v. The State, 4 Humphrey, 34.

Murder in the second degree includes all cases of deliberate homicide where the inten tion is not to take life, of which, homicide by a workman throwing timber from a house into the street of a populous city, without warning, or of a person shooting at a fowl, animo furandi, and killing a man, are instances frequently given. Whiteford v. Com. 6 Randolph, 721; There may, also, be cases where death ensues during a riotous affray, under circumstances which would constitute murder at common law, but which, in consequence of the want of a specific intent to take life being shown, amount but to murder in the second degree. Thus, where it appeared that the deceased, during the riots in Philadelphia in 1844, was killed while a desultory fire was going on, the object of which was to prevent either of two contending parties from taking possession of a position which both of them were desirous of obtaining, it was said that a homicide, committed under such circumstances, though murder at common law, deliberation being shown, might not be murder in the first degree, and a verdict of murder in the second degree was consequently rendered. KING, Pres't, who tried the case, however, charged the jury, "that if one or more of the parties so engaged in an unlawful combat, deliberately fire at and kill an innocent third person, taking no part in the conflict, having no just reason to regard him as one of the belligerents, such killing would be murder of the first degree. It would present the case of a wilful, deliberate and premeditated killing, perpetrated with an instrument likely to take life, rendering the actual perpetrators guilty of the highest grade of crime known to our criminal code. If the testimony, in your judgment," he said, "brings clearly home to the defendant such a charge, he should be convicted. If, however, the commonwealth has not fully satisfied your minds in the affirmative of this position, or if the proofs adduced by the defendant have rebutted this allegation, or thrown a fair doubt upon its certainty, you ought not and cannot justly convict him of that part of the charge involving capital punishment." Com. v. Hare, 4 Penns. Law Jour. 401.

If a pregnant woman be killed in an attempt to produce abortion in her, and it appears that the design of the operator was not to take the life of the mother, it is murder in the second degree. Ex parte Chauncey, 2 Ashmead, 227.

Wherever the deliberate intention is to take life, and death ensues, it is murder in the first degree; wherever it is to do bodily harm, or other mischief, and death ensues, it is murder in the second degree; while the common law definition of manslaughter remains unaltered. But however clear may be the distinction between the two degrees, juries not unfrequently make use of murder in the second degree as a compromise, when they believe murder to have been committed, but are unwilling, in consequence of circum. stances of mitigation, to expose the defendant to its full penalties. In such cases courts are not disposed to disturb verdicts, but permit them to stand, though technically incorrect. Thus, where S. having conceived and declared a design to kill P., the parties met afterwards in front of S.'s own house, and a quarrel ensued, in which S. gave the first offence; P. proposed a fight; upon which S. retired for a very brief time into

his house, armed himself with a loaded pistol, which he concealed in his pocket, and instantly returned so armed to the scene of quarrel; then P. threw a brickbat at S, which did not hit him, but falling short of him, broke, and a small fragment struck S.'s child, standing within his own door, who cried out, and his hearing his child cry out, but without looking to see whether he was hurt or not, exclaimed," he has killed my child and I will kill him," advanced towards P. deliberately aimed and fired the pistol at him, then retreating with his face towards S., and the shot took effect and killed P. A verdict of murder in the second degree being rendered, the court refused to set it aside. Slaughters v. Com. 11 Leigh, 682.

There are, however, certain features which, in cases of deliberate homicide, draw forth, generally from the courts instructions to the jury that by them a deliberate intent to take life is shown. Where a man makes use of a weapon likely to take life; where he declares his intentions to be deadly; where he makes preparations for the concealing of the body; where, before the death, he lays a train of circumstances which may be calculated to break the surprise, or baffle the curiosity which would probably be occasioned by it; where, in any way, evidence arises which shows a harboured design against the life of another;-such evidence goes a great way to fix the grade of homicide at murder in the first degree; as in Resp. v. Mulutto Bob, quoted ante, 454. Where a man loaded a pistol, took aim at, and shot another, it was held murder in the first degree. Com. v. Smith, 7 Smith's Laws, 696. If one man shoot another through the head with a musket or pistol ball,-if he stab him in a vital part with a sword or dagger,-if he cleave his skull with an axe or the like,—it is almost impossible for a reflecting and intelligent mind to come to any other conclusion than that the perpetrator of such acts of deadly violence intended to kill. Com. v. Daily, 4 Penn. Law Journal, 157. Where the defendant deliberately procured a butcher's knife, and sharpened it for the avowed purpose of killing the deceased; Com. v. Burgess, 2 Va. Cases, 484; where he concealed a dirk in his breast, stating, shortly before the attack, that he knew where the seat of life was; Bennett's case, 11 Leigh, 749; where he thrust a hand-spike deeply into the forehead of the deceased; Swan v. State, 4 Humphrey, 139; the presumption was held to exist, that the killing was wilful. See U. S. v. Cornell, 2 Mason, 94; Woodside v. State, 2 Howard, 656; State v. Toohey, 2 Rice's Digest, 104; Com. v. Webb, 6 Randolph, 721. But it is not necessary, to warrant a conviction of murder in the first degree, that the instrument should be such as would necessarily produce death. Thus, where the weapon of death was a club not so thick as an axe-handle, the jury, under the charge of the court, rendered a verdict of murder in the first degree, it appearing that the blow was induced by a deliberate intention to take life. Com. v. Murray, 2 Ashmead, 57. The same presumption of intention is drawn with still greater strength from the declared purpose of the defendant. Thus, where the prisoner, a negro, said he intended" to lay for the deceased, if he froze, the next Saturday night," and where the homicide took place that night; Jim v. State, 5 Humphrey, 174; where it was said, "I am determined to kill the man who injured me;" Com. v. Burgess, 2 Va. Cases, 484; where the prisoner had declared, the day before the murder, that he would certainly shoot the deceased; Com. v. Smith, 7 Smith's Laws, 697; where, in another case, the language was, "I will split down any fellow that is saucy;" Com. v. Mulatto Bob, 4 Dallas, 146; where the prisoner rushed rapidly to the deceased, and aimed at a vital part; Com. v. O'Hara, 7 Smith's Laws, 694; where a grave had been prepared a short time before the homicide, though the deceased was not ultimately placed in it, the whole plan of action being changed; Com. v. Zephon, Oyer & Term. Phila. July, 1844, MSS. Wharton's Am. C. L. 289; in each of these cases it was held murder in the first degree. It must be noticed that premeditation, in the eye of the law, has no defined limits; and if a design be but the conception of a moment it is as deliberate, so far as judicial examination is concerned, as if it were the plan of years. If the party killing had time to think, and did intend to kill, for a minute, as well as an hour or a day, it is a deliberate, wilful, and premeditated, killing, constituting murder in the first degree. Com. v. Smith, 7 Smith's Laws, 697.

In an early case in Tennessee, it is true, it was said that a previous intent to take life must be positively shown; Mitchell v. State, 5 Yerger, 340.; but such is not the opinion which now obtains even in that state. State v. Anderson, 2 Tenness. 6; Dale v. State, 10 Yerger, 551. If the accused, as he approached the deceased, and first came within view of him at a short distance, then formed the design to kill, and walked up with a quick pace, and killed him without any provocation then, or recently received, it is murder in the first degree. Whiteford v. Com. 6 Randolph, 721; Anthony v. State, 1 Meigs, 265; Resp. v. Mulatto Bob, 4 Dallas, 146. "It is true," as was said in a late case, “the act says the killing must be wilful, deliberate, and premeditated. But every intentional

act is, of course, a wilful one, and deliberation and premeditation simply mean that the act was done with reflection, was conceived beforehand. No specific length of time is required for such deliberation. It would be a most difficult task for human wit to furnish any safe standard in this particular. Every case must rest on its own circumstances. The law, reason, and common sense unite in declaring that an apparently instantaneous act may be accompanied with such circumstances as to leave no doubt of its being the result of predetermination." Com. v. Daley, 4 Penn. Law Journal, 156; Davis v. State, 2 Humphrey, 439.

It is not necessary, nor is it the practice to designate the grade of homicide in the indictment, nor that the killing should be charged to be wilful, deliberate, and premeditated. Com. v. Wicks, 2 Va. Čases, 387; Mitchell v. State, 5 Yerger, 340; Com. v. Flannagan, 8 Watts & Serg. 415; Com. v. White, 6 Binney, 183; Com. v. Miller, 1 Va. Cases, 310; Com. v. Gilbert, 2 Va. Cases, 70. So if murder be committed in the perpetration of arson, rape, burglary, or robbery, it is not necessary that it should be so set out in the indictment. Com. v. Flannagan, 8 Watts & Serg. 415. In Pennsylvania it is not neces sary that the indictment should conclude, contrary to the form of the act of assembly, &c. Com. v: White, 6 Binney, 183. On an indictment for murder, perpetrated by means of poison, a verdict finding the prisoner "guilty in manner and form as stated in the indictment," is as correct as of murder in the first degree, and sufficient to authorize the judgment of death. Com. v. Earl, 1 Wharton, 525.

In MAINE, the same line of distinction seems to have been taken as appears in the foregoing cases. In the case of The Commonwealth v. Varney, Shepley, J., charged the jury that they could find either of four verdicts, not guilty, guilty of manslaughter, guilty of murder in the second degree, or murder in the first degree. "If it was proved that the prisoner killed Otis, the burden was upon him to reduce the offence from murder. The distinction between murder in the first and second degree was, that it must be proved that the deed was done with express malice, and with an intent to take life. Murder in the second degree might be found where there was no intention to take life, but it was taken not upon a mutual combat or sudden provocation, but in an assault made in consequence of preconceived anger or resentment, although not amounting to an intention to kill. That, in this case, to reduce the offence to manslaughter, the prisoner must satisfy them, or they must be satisfied from the facts proved by the government, that the assault was not the result of preconceived anger, but upon soine new and sudden provocation given at the time, or in the mutual combat. If the prisoner went there for the purpose of flog. ging the deceased, and did make the assault accordingly, and there was no sufficient provocation to excite him anew, and no mutual combat, then, although he did not intend to kill, he would be guilty of murder in the second degree." Com. v. Varney, 8 Boston Law, R. 542. Vide Wh. Am. C. L. 287-290, where the above cases are collected.

The distinction taken, in Ohio, between murder in the first and murder in the second degree, is different from that which obtains in other States. Thus it was said, in a charge by Judge Wright; "To convict of mudder in the first degree, you must, in addition to the points I have mentioned, be satisfied, 1. That the prisoner perpetrated the act purposely. 2. That he did it with intent to kill. 3. That he did it of deliberate and premeditated malice. To constitute deliberate and premeditated malice, the intention to do the injury must have been deliberated upon, and the design to do it formed, before the act was done, though it is not required that either should have been for any considerable time before. This supposes the party, by reflection, understood what he was about to do, and intended to do it in order to do harm. If these things are all proved, and you find the defendant guilty of murder in the first degree, you need examine no further. If not proven to your satisfaction, you will then examine further. To convict of murder in the second degree, you must be satisfied of the general facts common to all the offences, which I have stated, and also of the following: 1. That the prisoner perpetrated the act purposely and maliciously; 2, with intent to kill; and 3, without deliberation or premeditation. If you are not satisfied of the concurrence of these facts, you should acquit him of murder in the second degree, and will be under the necessity of examining further." State v. Turner, Wright, 20; State v. Town, Wright, 75; State v. Gardiner, Wright, 392.

To constitute the crime of murder in the first degree, when the purpose to maliciously kill, with premeditation and deliberation, is found, the length of time between the design so formed and its execution, is immaterial. Shoemaker v. State, 12 Stanton, 43.

If the jury do not in a murder case specify in their verdict whether they find the pri

soner guilty of murder in the first or second degree, or of manslaughter, the court will refuse to pass sentence, and award a new trial, even if not asked for. State v. Town, Wright, 75.

In KENTUCKY, a statute was passed in 1801, 2 Morehead & Brown, 1267, by which a similar distinction was supposed to have been created, but at the next session of the legislature it was enacted that the former statute should not be so construed as "in any way to alter or change the idea of murder, as it stands at common law." Ibid. 1281. See Wharton's Am. Cr. L. p. 287-292, where most of the statutes and cases are col· lected.

[455]

CHAPTER XXXVII.]

CONCERNING MURDER BY MALICE IMPLIED PRESUMPTIVE, OR MALICE IN LAW.

I HAVE before distinguished malice implied into these kinds: 1. When the homicide is voluntarily committed without provocation. 2. When done upon an officer or minister of justice. 3. When done by a person, that intends a theft or burglary, &c.

1. Therefore touching the former of these.

When one voluntarily kills another without any provocation, it is murder, for the law presumes it to be malicious, and that he is hostis humani generis ;[1] it remains therefore to be inquired, what is such

[1] The killing being proved, the inference is, that it was malicious, and that the party is guilty of murder, and it is for the accused to show the circumstances which justify, extenuate, or excuse the act; and this is accordant with the ordinary rule of evidence, that the party alleging the affirmative must prove it-a rule which usually ap plies in criminal as in civil cases. Kelyng, 27, 1 East, P. C. 224, 340; 4 Bl. Com. 201; Roscoe Cr. Ev. (2d ed.) 20; The King v. Onely, 2 Ld. Ray. 1493, and 2 Strange, 773; Mitchell v. The State, 5 Yerger, 340; Commonwealth v. Knapp, 10 Pick, 484; Respublica v. Mulatto Bob, 4 Dallas, 146; Mackalley's case, 9 Co. 67 b; Maugridge's case, Kelyng, 119; Hollowaye's case, Palm. 545; Cro. Car. 131; Bac. Ab. Murder, C. 2; 2 McNally, 546; 2 Starkie Ev. 948; Archbold, Cr. Pl. 212, 213; 3 Chitty, Cr. L. (4 Am. Ed.) 727; 1 Gabbitt, Cr. L. 455: Queen v. Kirkham, 8 Car. & P. 116– 117; King v. Greenacre, 8 Car. & P. 35; People v. McLeod, 1 Hill, 436; State v. Zellers, 2 Halstead, 243; Pennsylvania v. Honeyman, Bell, Mc Fall & Lewis, Addison, 148, 161, 250, 282; Commonwealth v. York, 9 Metcalf, 93.

The killing, to be murder, must be committed with malice aforethought; but wherever it appears that a man killed another, it shall be intended, prima facie, that he did it maliciously, unless he can make out the contrary, by showing that he did it on a sud. den provocation, or the like. 1 Hawk. c. 31, s. 32; R. v. Greenacre, 8 C. & P. 35.

And in general, any formed design of doing mischief may be called malice; and, therefore, not such killing only as proceeds from premeditated hatred or revenge against the person killed, but also in many other cases, such as is accompanied with those circumstances that show the heart to be perversely wicked, is judged to be of malice prepense, and consequently, murder. 2 Hawk. c. 31, s. 18; 2. Str. 766.

For when the law makes use of the term malice aforethought, as descriptive of the crime of murder, it is not to be understood in that narrow restrained sense to which the modern use of the word malice is apt to lead one, a principle of malevolence to par.