§ 405. Definition-Coke's description-Requisites.-Murder is the killing of a human being without justification or excuse and with malice aforethought, express or implied. According to Sir Edward Coke murder is committed when a person of sound memory and discretion unlawfully kills any reasonable creature in being, and under the king's peace, with malice aforethought, either express or implied.1 To constitute murder the following conditions are essential:

13 Coke's Inst. 47; Hornsby v. State (Ala. App.), 75 So. 637; State v. McGarrity, 140 La. 436, 73 So. 259; Killian v. State, 19 Ga. App.

750, 92 S. E. 227; Little v. Commonwealth, 177 Ky. 24, 197 S. W. 514; State v. Lichter (Del.), 102 Atl. 529.

(1) The slayer must be of sound mind and discretion.

(2) The victim must be a reasonable creature in being, as distinguished from an unborn child.

(3) The slayer, at the time of the homicide, must entertain malice aforethought.

(4) The victim must die within a year and a day after the

act.

§ 406. Mental capacity of the slayer.-The slayer, as heretofore stated, must be of sound mind and discretion at the time the act is committed. If his mind is diseased, so that he is incapable of distinguishing between right and wrong as to the act committed, or, according to some decisions, though he is capable of distinguishing between right and wrong as to that act, but, owing to want of power of control he is incapable of eschewing it, he lacks capacity to commit murder; or, if his mind is so immature that he lacks capacity to entertain legal malice, he can not be guilty of murder.

§ 407. Victim must be a human being.—It is not murder to terminate the life of an unborn child. It is Coke's view that "If a woman be quick with child, and by a potion or otherwise killeth it in her womb; or if a man beat her, whereby the child dieth in her body, and she is delivered of a dead child, this is a great misprision, and no murder."2 And as said by Bishop, "A child within its mother's womb is not a being on whom a felonious homicide can be committed; it must be born."3

23 Coke's Inst. 50. See also 1 Hale P. C. 433.

32 Bish. New Crim. L. (8th ed.), § 632.

§ 408. Independent circulation.-To be fully born a child must have independent circulation. It is possible, however, for a child to have a potential independence prior to its actual independence. An example, of this is where a child is severed from its dead mother by the Cæsarean operation and survives. But even in this case an actual independence is essential to constitute the child a living human being.5

§ 409. Independent respiration. Must a child have breathed independently of its mother to render it a living human being? Upon this question the authorities are not harmonious. It is Caspar's view that "In foro the term 'life' must be regarded as perfectly synonymous with 'respiration'. Life means respiration. Not to have breathed is not to have lived." Bishop's opinion is that "neither need the child have breathed, if otherwise it had life and an independent circulation." And according to Justice Park, “A child must be actually wholly in the world in a living state to be the subject of a charge of murder; but if it has been wholly born, and is alive, it is not essential that it should have breathed at the time it was killed; as many children are born alive, and yet do not breathe for sometime after their birth."s The latter view is in accord with the weight of modern authority.

§ 410. Severance of the umbilical cord.-Can a child be fully born before the severance of the umbilical cord? Upon this question, also, the authorities are not harmonious. Bishop answers it in the affirmative. According to the

4 State v. Winthrop, 43 Iowa 519, 22 Am. Rep. 257; Evans v. People, 49 N. Y. 86; Wallace v. State, 7 Tex. App. 570, 10 Tex. App. 255; State v. Prude, 76 Miss. 543, 24 So. 871; Rex v. Brain, 6 Car. & P. 349. 5 State v. Winthrop, 43 Iowa 519, 22 Am. Rep. 257.

63 Casper Forensic Med. 33.

72 Bish. New Crim. L. (8th ed.), § 632. See also Rex v. Brain, 6 Car. & P. 349.

8 Rex v. Brain, 6 Car. & P. 349. 92 Bish. New Crim. L. (8th ed.),

§ 632.

better view, however, as well as the weight of modern authority, a child is not fully born, and therefore not the subject of homicide, until the umbilical cord has been severed.10

§ 411. Effect of premature birth.-The fact that the child is born prematurely, that is, before the full period of gestation has elapsed, is immaterial. Hence, where a person unlawfully causes the premature delivery of a woman, and the child is born alive but subsequently succumbs owing to the fact of its premature birth, the person who thus causes its premature birth is guilty of murder.11 "If the child be born alive, and dieth of the potion, battery, or other cause, this is murder."12

§ 412. Malice aforethought-Express and implied.-The distinguishing feature between murder and manslaughter is malice aforethought. Its presence is essential to make the crime murder.

In its ordinary sense, the term malice means hatred or illwill. In the crime of murder, however, it has a technical meaning. In this sense it includes wicked and corrupt motives, as well as hatred or ill-will.

Malice is either express or implied. To constitute express malice there must be an actual intent to kill. "Express malice is when one, with a sedate, deliberate mind and formed design, doth kill another; which formed design is evidenced by external circumstances discovering that inward intention; as lying in wait, antecedent menaces, former grudges and concerted schemes."13

10 Clark & M. Law of Crimes (2d ed.) 311, § 234. See also State v. Winthrop, 43 Iowa 519, 22 Am. Rep. 257.

11 2 Bish. New Crim. L. (8th ed.), §633; Reg. & West, 2 Car. & K. 784. See also Rex v. Senior, 1 Moody 346.

122 Bish. New Crim. L. (8th ed.), § 633. See also 1 Hale P. C. 433.

134 Bl. Comm. 198. See also McWhirt's Case, 3 Grat. (Va.) 594, 46 Am. Dec. 196; McCoy v. State, 25 Tex. 33, 78 Am. Dec. 520; State v. Prettyman, 6 Boyce (29 Del.) 452, 100 Atl. 476.

Implied malice, on the other hand, is malice which is inferred from conduct on the part of the slayer which indicates an abandoned state of mind, fatally bent on mischief; and which is equivalent in the eye of the law to an actual intent to kill. Such malice may emanate from conduct which manifests cruelty of disposition and recklessness of consequences.1 The law infers guilty intention from reckless conduct; and where the recklessness is of such a character as to justify this inference it is the same as if the accused had deliberately intended the act committed.15

14

§ 413. Actual intent to kill not essential.-To constitute a homicide murder an actual intent to kill is not essential. A sane person is presumed to have intended the natural and probable consequences of his voluntary acts. Hence, when he voluntarily does an act which has a direct tendency to destroy another's life the necessary conclusion is that he intended to so destroy such person's life.16

§ 414. Malice presumed from the act.-Upon principle, a legal presumption should not arise from the mere fact of homicide. As said by Judge Cooley, "As the majority of the homicides are not, in fact, malicious, but occur through misadventure, or under circumstances which would reduce the offense to manslaughter, a legal presumption of malice

14 McClain V. Commonwealth, 110 Pa. St. 263, 1 Atl. 45. See also State v. Capps, 134 N. Car. 622, 46 S. E. 730; Commonwealth v. Cleary, 135 Pa. St. 64, 19 Atl. 1017, 8 L. R. A. 301, Derby's Cases 352; United States v. Outerbridge, 5 Sawy. (U. S.) 620, Fed. Cas. No. 15978, Derby's Cases 341; State v. Prettyman, 6 Boyce (29 Del.) 452, 100 Atl. 476.

15 Pool v. State, 87 Ga. 526, 13 S. E. 556; Holt v. State, 89 Ga. 316, 15 S. E. 316; Commonwealth v.

Chance, 174 Mass. 245, 54 N. E. 551, 75 Am. St. 306; People v. Huther, 184 N. Y. 237, 77 N. E. 6, Derby's Cases 347.

16 Commonwealth v. Webster, 5 Cush. (Mass.) 295, 52 Am. Dec. 711n, Knowlton's Cases 140; Commonwealth V. York, 9 Metc. (Mass.) 93, 103, 43 Am. Dec. 373. See also State v. Levelle, 34 S. Car. 120, 13 S. E. 319, 27 Am. St. 799; Goodman v. State (Ala. App.), 72 So. 687.