$180. Different kinds of homicide. Homicide is

either

1. Murder;

2. Manslaughter;

3. Excusable homicide; or,

4. Justifiable homicide.

Prosecution must establish grade of offense. No legal implication of murder from fact of killing. Stokes v. Peo., 53 N. Y., 164. Justification. Peo. v. Carnel, 2 Edm., S. C., 200; Sawyer v. Peo., 1 N. Y. Cr., 249.

§ 181. What proof of death is required.-No person can be convicted of murder or manslaughter, unless the death of the person alleged to have been killed and the fact of killing by the defendant as alleged are each established as independent facts; the former by direct proof and the latter beyond a reasonable doubt.

Corpus delicti to be shown in felony. Ruloff v. Peo., 18 N. Y. 179; Peo. v. Wilson, 3 Park., 199; Peo. v. Bennett, 49 N. Y. 137. Davis's case, 3 C. H. Rec., 45. Lucid interval of lunatic must be proved by people. Peo.v. Montgomery, 13 Abb. Pr. (N. S.), 207.

§ 182. Common law petit treason is homicide.-The rules of the common law, distinguishing the killing of a master by his servant, and of a husband by his wife, as petit treason, are abolished; and those homicides are punishable, when not justifiable or excusable, as prescribed by this Code.

§183. Murder in first degree defined.—The killing of a human being, unless it is excusable or justifiable, is murder in the first degree, when committed either

From a deliberate and premeditated design to effect the death of the person killed, or of another; or

By an act imminently dangerous to others, and evincing a depraved mind, regardless of human life, although without a premeditated design to effect the death of any individual; or without a design to effect death, by a person engaged in the commission of, or in an attempt to commit a felony, either upon or affecting the person killed or otherwise; or

When perpetrated in committing the crime of arson in the first degree.

Anger in intoxication no defense, §§ 17-23, supra. Peo. v. Johnson, 1 Park., 291; Peo. v. Austin, Ibid. 154, 167; Peo. v.

Vinegar, 2 id., 24; Peo. v. Sullivan, 7 N. Y., 396; Peo. v. Hen drickson, 9 How. Pr., 155; S. C., 8 id., 404; Peo. v. Van Steen. burg, 1 Park., 39; Peo. v. Austin, id., 154; Peo. v. Johnson, id., 291; Lake v. Peo., id., 495; Peo. v. Thayers, id., 595; Colt v. Peo., id., 611; Peo. v. Robinson, id., 649; S. C., 2 id., 235; Fastwood v. Peo., 3 id., 25; Peo. v. Williams, id., 84; Peo. v. Wil son, id., 199; Peo v. McCann, id., 272; Peo. v. Cummings, id., 313, 401; Rogers v. Peo., id., 632 Peo. v. Stout, id., 670; Peo. v. Wood, id., 681; Peo. v. Cunningham, 6 id., 393, 609, Walter v. Peo., 32 N. Y., 147, 159; Peo. v. Enoch, 13 Wend., 159, 173; Fraser v. Freeman, 43 N. Y., 566, 570; Fitzgerrold v. Peo., 37 id., 413, 416; Peo. v. McCann, 16 id., 58; Pco. v. Clark, 7 id.,385; Peo. v. White, 24 Wend., 520, 534 ; S. C., 22 id., 167; Peo. v. Rec tor, 19 Wend., 569, 592; Rodgers v. Peo., 15 How. Pr., 557; Peo. v. Baker, 10 id., 567.

Sub. 1 Intent how established. Peo. v. Rogers, 13 Abb. Pr. (N. S.) 370; Foster v. Peo., 50 N. Y. 598. Peo. v. Waltz, 50 How. Pr., 204. What is deliberation. Dolan v. Peo., 6 Hun, 493, S. C., 64 N. Y., 485; Peo. v. Batting, 49 How. Pr., 392. Leighton v. Peo, 88 N. Y., 117; Peo. v. Majore, 91 N. Y., 211; Peo. v. Carnel, 2 Edm., S. C., 200; Peo. v. Mulvey, ib., 246; Peo. v. Clark, ib., 273. Insufficient evidence of intent. Peo. v Mangano, 29 Hun, 259. Deadly weapon. Thomas v. Peo., C7 N. Y., 218. Wife taken in adultery. Shufflin v. Peo, 4 Hun, 16; S. C., 62 N. Y., 229; McKenna v. Peo., 81 N. Y., 360. Evidence of intent. Peo. v. Jefferson, 2 N. Y. Cr., 240. Indictment need not specify intent. Peo. v Conway, ib., 565.

Sub. 2. Acts regardless of life. Darry v. Peo., 10 N. Y., 120; Lee v. State, 1 Cold. Tenn., 62; Com. v. York, 9 Metc., 93; State v Smith, 2 Strobh., 77; State v. Sisson, 3 Brev., 58; Golliher v. Com., 2 Duvall, Ky., 163; Sparks v. Com., 3 Bush, Ky., 111.

Sub. 3. Engaged in felony, intent not necessary to constitute murder. Buel v. Peo., 18 Hun, 487; S. C., 78 N. Y., 492; Cox v. Peo., 19 Hun, 430; S. C., 80 N. Y., 100; Peo. v. Carmichael, 5 Mich., 10; Peo. v Adwards, ib., 22; Com. v. Keeper, 2 Ashen., 227; Dill v. State, 25 Ala., 15; Peo. v. Hand, 4 A. L. J., 91; Ruloff v. Peo., 45 N. Y., 213; S. C., 5 Lans., 261; Peo. v. Cole, 2 N. Y. Cr., 108; Peo. v. Conroy, ib., 247.

§ 184. Id.; second degree. Such killing of a human being is murder in the second degree, when committed with a design to effect the death of the person killed, or of another, but without deliberation and premeditation.

Peo. v. Skeehan, 49 Barb., 217; Kenny v. Peo., 31 N. Y. 330. Intoxication to disprove deliberation. Peo. v. Batting, 49 How. Pr., 392; Peo. v Cavanagh, 62, ib., 187; Peo. v. Pearce, 2 Edm., S. C., 76; Peo. v. Jones, ib., 86; Peo. v. Cassiano, 30 Hun, 388.

§ 185. Id.; Duel fought out of this state.-A person who, by previous appointment made within the state, fights a duel without the state, and in so doing inflicts a wound upon his antagonist, whereof the person injured dies; or who engages or participates in such a duel, as a second or assistant to either party, is guilty of murder in the second degree, and may be indicted, tried and convicted in any county of this state.

Code Cr. Proc., § 133. See §§ 239, 240 post.

§ 186. Punishment of murder in first degree.-Murder in the first degree is punishable by death.

§ 187. Murder in second degree, how punished.— Murder in the second degree is punishable by imprison ment for the offender's natural life.

§ 188. Manslaughter defined.-In a case other than one of those specified in the sections 183, 184 and 185, homicide, not being justifiable or excusable, is manslaughter.

Peo. v. Ryan, 2 Wh. Cr. C., 47. Degrees. Peo v. Pearce, 2 Edm., S. C., 76; Peo. v. Donaldson, ib., 78; Peo. v. Crowe, ib.,

152.

§ 189. Id.; in the first degree.-Such homicide is manslaughter in the first degree, when committed without a design to effect death, either

1. By a person engaged in committing, or attempting to commit, a misdemeanor, affecting the person or property, either of the person killed, or of another; or

2. In the heat of passion, but in a cruel and unusual manner, or by means of a dangerous weapon.

Peo. v. Butler, 3 Park, 377; Darry v. Peo., 10 N. Y., 120. May convict on indictment for murder. Peo. v. McDannell, 1 N. Y. Cr., 366.

Sub. 1. Peo. v. Rector, 19 Wend, 569.

Sub. 2. Heat of passion; Peo. v. Sullivan 7 N. Y., 396. Patter son's case, 3 C. H., Rec., 145. Peo. v. Johnson, 1 Park, 291; Peo. v. Hammill, 2 ib., 223; McCann v. Peo., 6 ib., 629; Peo. v. Sheriff of Westchester Co., 1 Park., 659; Buel v. Peo., 78 N. Y., 492, 500; Foster v. Peo., 50 N. Y., 598.

§ 190. Killing unborn quick child.-The willful killing of an unborn quick child, by any injury committed upon the person of the mother of such child, is manslaughter in the first degree.

Evans v. Peo., 49 N. Y., 86.

§ 191. Id.; by administering drugs, etc.-A person who provides, supplies, or administers to a woman, whether pregnant or not, or who prescribes for, or advises or procures a woman to take any medicine, drug, or substance, or who uses cr employs, or causes to be used or employed, any instrument or other means, with intent thereby to procure the miscarriage of a woman, unless the same is necessary to preserve her life, in case the death of the woman, or of any quick child of which

she is pregnant, is thereby produced, is guilty of manslaughter in the first degree.

See §§ 294, 297, 318 post. Watson v. State (Tex.), 22 Alb. L. J., 318; Lohman v. Peo., 1 N. Y., 379, 383; Hunt v. Peo., 3 Park., 569; Peo. v. Stockman, 1 id., 424; Peo. v. Davis, 95, 101; Mongeon v. Peo., 55 N. Y., 613, 615; S. C., 2 T. & C., 128; Davis v. Peo., 2 T. & C., 212; Evans v. l'eo., 49 Ń. Y., 86, 87.

§ 192. Manslaughter in first degree how punished.Manslaughter in the first degree is punishable by imprisonment for not less than five nor more than twenty years.

§ 193. Manslaughter in second degree.-Such homicide is manslaughter in the second degree, when committed without a design to effect death, either

1. By a person committing or attempting to commit a trespass, or other invasion of a private right, either of the person killed, or of another, not amounting to a crime; or

2. In the heat of passion, but not by a deadly weapon or by the use of means either cruel or unusual; or

3. By any act, procurement or culpable negligence of aut any person, which, according to the provisions of this chapter, does not constitute the crime of murder in the first or second degree, nor manslaughter in the first degree.

Sub. 2. Wilson v. Peo, 4 Park, 619. See Peo. v. Johnson, 1 Park., 291.

Sub. 3. Goodwin's case. 5 C. H. Rec., 52; S. C., 1 Wh, Cr. C., 253. Peo. v. Cole, 4 Park., 35. Randall's case, 5 C. H. Rec. 541. Peo. v. Divine, Edm. S. C., 594. Peo. v. Westchester, Park., 659. Peo. v. Fuller, 2 Park, 16. In resisting trespass. Com. v. Drew, 4 Mass., 391. State v. Vance, 17 Ia., 38. State v. Smith, 3 Dev. and Batt., 117. In case of adultery. Sanchez v. Peo., 22 N. Y., 147. State v. Holme, 54 Mo., 153. State v John, 8 Ired, 330. Sawyer v. State, 35 Ind., 80. State v. Samuel, 3 Jones, 74. State v. Neville, 6 Ib., 423. State v. Avery, 64 N. C., 608. Peo. v. Horton, 4 Mich., 67. Lynch v. Com, 77 Penn. St., 505. In mutual combat. State v. Underwood, 57 Mo., 40. U. S. v. Mingo, 2 Curtis, C. C. 1. See § 195, post.

§194. Woman taking drugs, etc.-A woman quick with child, who takes or uses, or submits to the use of any drug, medicine, or substance, or any instrument or

མ ིར་དོད་

2

other means with intent to produce her own miscarriage, unless the same is necessary to preserve her own life, or that of the child whereof she is pregnant, if the death of such child is thereby produced, is guilty of manslaughter in the second degree. See § 295, post.

§ 195. Negligent use of machinery, etc.-A person who, by any act of negligence or misconduct in a business or employment in which he is engaged, or in the use or management of any machinery, animals, or property of any kind, intrusted to his care, or under his control, or by any unlawful, negligent or reckless act, not specified by or coming within the foregoing provisions of this chapter, or the provisions of some other statute, occasions the death of a human being, is guilty of manslaughter in the second degree.

See f 193, sub. 3, supra; § 196, post. Wilson v. Peo., 4 Park., 641; Thomas v. Winchester, 6 N. Y., 397, 409; Peo. v. Austin, 1 Park., 15; Peo. v. Schryver, 42 N. Y., 1, 5.

§ 196. Owner of animals.-If the owner of a mischievous animal, knowing its propensities, willfully suffers it to go at large, or keeps it without ordinary care, and the animal, while so at large, and not confined, kills a human being, who has taken all the precautions which the circumstances permitted, to avoid the animal, the owner is guilty of manslaughter in the second degree.

See § 195, supra; § 640, sub. 11, post.

§ 197. Killing by overloading passenger vessels.A person navigating a vessel for gain, who willfully or negligently receives so many passengers or such a quantity of other lading on board the vessel, that, by means thereof, the vessel sinks, or is overset or injured, and thereby a human being is drowned, or otherwise killed, is guilty of manslaughter in the second degree.

See 359, post.

§ 198. Liability of persons in charge of steamboats.— A person having charge of a steamboat used for the