seems inconsistent with the general doctrines of the criminal law, as well as with humanity."17 Best takes an opposite view: "Although the law never presumes guilt or fraud in the first instance, yet it is held, that where a homicide has once been proved, the law will presume that it was done maliciously, and casts on the party accused the onus of proving either his complete justification or excuse, or such palliating circumstances as may reduce the offense to manslaughter." This view is in accord with Foster's19 and Blackstone's,20 and is also supported by the great weight of authority. But, upon principle, as heretofore stated, no legal presumption of malice should arise from the mere fact of homicide. On the other hand, however, the surrounding circumstances may give rise to a presumption of facts.21 § 415. Malice presumed from the use of a deadly weapon. -When a person, without justification, excuse or extenuating circumstances, commits homicide with a deadly weapon, malice is always presumed.22 A deadly weapon is one likely to produce death or great bodily injury.23 Some instruments are deadly weapons per se.24 As a general rule, when a homicide is committed by striking with the fists, or kicking with the feet, and the slayer has no actual intent to kill, or cause serious bodily harm, the necessary malice to render the offense murder is not 17 Cooley's Bl. Comm. bk. 4, 201n. 18 Best's Right to Begin and Reply, § 20. 19 Foster C. L. 255. 20 4 Bl. Comm. 201. 21 Dukes v. State, 14 Fla. 499; Maher v. People, 10 Mich. 212, 81 Am. Dec. 781; Farris v. Commonwealth, 14 Bush (Ky.) 362; State v. Swayze, 30 La. Ann. 1323; Clem v. State, 31 Ind. 480; Eiland v. State, 52 Ala. 322; 2 Bish. Crim. implied.25 On the other hand, when the circumstances surrounding a homicide manifest an abandoned and wicked heart, malice is implied.26 It may be implied from setting fire to a building in which there are persons. 27 § 416. Wilful omission to perform a legal duty.-When death is caused by the negligent act of another the homicide, ordinarily, is manslaughter. But when it is caused by a wilful neglect to perform a legal duty it is murder. Thus, if a switchman of a railroad company is grossly negligent in failing to perform his duty in adjusting the tracks, thereby causing death, the homicide is manslaughter; but if his will concurred in his negligence he is guilty of murder.28 § 417. Deliberation and premeditation.-Deliberation and premeditation are not essential elements of common-law murder. No specific time must necessarily elapse between the intent to kill and the overt act to render the homicide murder. It is sufficient if the malicious intention precedes and accompanies the overt act.29 § 418. Deliberation and premeditation-Statutory degrees of murder.-At common law, murder is not divided 25 Wellar v. People, 30 Mich. 16. 26 Mayes v. People, 106 Ill. 306, 46 Am. Rep. 698. See also Whart. on Homicide (3rd ed.), 104; 2 Starkie Ev. 951; Adams v. People, 109 I11. 444, 50 Am. Rep. 617; Maulding v. Commonwealth, 172 Ky. 370, 189 S. W. 251. 27 Reg. v. Serne, 16 Cox Cr. C. 311, Derby's Cases 343. 28 State v. O'Brien, 32 N. J. L. 169. See also Territory v. Manton, 7 Mont. 162, 14 Pac. 637. 29 State v. Anderson, 2 Overt. (Tenn.) 6, 5 Am. Dec. 648. See also Commonwealth v. Webster, 5 Cush. (Mass.) 295, 52 Am. Dec. 711n, Knowlton's Cases 140; Commonwealth V. York, 9 Metc. (Mass.) 93, 43 Am. Dec. 373; Peri v. People, 65 Ill. 17; State v. Hockett, 70 Iowa 442, 30 N. W. 742; Nye v. People, 35 Mich. 16; Leighton v. People, 88 N. Y. 117, Beale's Cases 472; Cook v. State, 77 Ga. 96; State v. Moore, 69 N. Car. 267; Green v. State, 13 Mo. 382; State v. Ashley, 45 La. Ann. 1036; 13 So. 738; State v. Coffey, 174 N. Car. 814, 94 S. E. 416; State v. Walker, 173 N. Car. 780, 92 S. E. 327. into degrees. In many states, however, there are statutes which divide murder into degrees. In most states it is divided into two degrees, but in a few states it is divided into three degrees. Pennsylvania was the first state to divide murder into degrees. The statute was passed March 31, 1860, and provided that all murder which should be perpetrated by means of poison, or by lying in wait, or by any other kind of wilful, deliberate, and premeditated killing, or which should be committed in the perpetration of, or attempt to perpetrate, any arson, rape, robbery, or burglary, should be deemed murder of the first degree; and all other kinds of murder should be deemed murder of the second degree.30 The statutes of the various states in which murder is divided into degrees are not entirely harmonious,31 but in most of them murder in the first degree consists in homicide in which there is actual intent to kill coupled with premeditation or deliberation, or, in homicide which is committed, though unintentionally, in the perpetration of certain felonies, such as rape, robbery, burglary, or arson. § 419. Meaning of terms "premeditation" and "deliberation."-The terms "premeditation" and "deliberation," as used in these statutes, are not synonymous. The former implies merely "previous contrivance or formed design," while the latter implies "reflection, however brief, upon the act before committing it; fixed and determined purpose, as distinguished from sudden impulse."32 Thus, a homicide 30 Penn. Pub. Stats., Act 1860, No. 374; P. L. 402, §§ 74, 75. See also Act 1893, P. L. 17; People v. Page (Mich.), 165 N. W. 755. 31 Mass. Rev. Laws (1902), ch. 207, 1; Penal Code of N. Y., §§ 183-187. 32 Cent. Dict. and Cyc. "Pre meditation" and "Deliberation." See also Copeland v. State, 7 Humph. (Tenn.) 479; Fahnestock v. State, 23 Ind. 231; Leighton v. People, 88 N. Y. 117, Beale's Cases 472; Harris v. State, 36 Ark. 127; Commonwealth v. Drum, 58 Pa. St. 9. committed on a sudden impulse may be premeditated, owing to the intent to kill, and at the same time not deliberate. "An act co-existent with and inseparable from a sudden impulse, although premeditated, could not be deemed deliberate, as when under a sudden and great provocation one instantly, although intentionally, kills another. But the statute is not satisfied unless the intention was deliberated upon. If the impulse is followed by reflection, that is deliberation; hesitation, epen, may imply deliberation; so may threats against another, and selection of means with which to perpetrate the deed. If, therefore, the killing is not the instant effect of impulse, if there is hesitation or doubt to be overcome, a choice made as the result of thought, however short the struggle between the intention and the act, it is sufficient to characterize the crime as deliberate and premeditated murder."33 "The deliberation and premeditation required by the statute are not upon the intent, but upon the killing. It is deliberation and premeditation enough to form the intent to kill, and not upon the intent after it has been formed. An intent distinctly formed, even 'for a moment' before it is carried into act, is enough."34 § 420. Murder in the second degree.-In those states in which murder is divided into two degrees all murder which falls short of being murder in the first degree is, of course, murder in the second degree. And what was murder at common law is still murder under the statutes which divide it into degrees. In other words, these statutes have not changed the scope of murder as it existed at common law.3 33 Leighton v. People, 88 N. Y. 117, Beale's Cases 472. See also State v. Williams, 69 Mo. 110; McDaniel v. Commonwealth, 77 Va. 281; Miller v. State, 54 Ala. 155; Wright v. Commonwealth, 33 Grat. (Va.) 880; People v. Kiernan, 101 N. Y. 618, 4 N. E. 130; Binns v. State, 66 Ind. 428; Atkinson v. 35 State, 20 Tex. 522; Schlencker v. 34 Keenan v. Commonwealth, 44 35 State v. Decklotts, 19 Iowa 447; Parker v. State, 24 Wyo. 491, § 421. Suicide.-At common law, suicide, or self-murder, was a crime punishable by forfeiture of the felon's estate and interment in the highway with a stake driven through his body.3 These penalties, however, have been abolished.37 36 Where one person persuades another to kill himself, the former is guilty of murder. If present when the act is committed, he is a principal in the second degree; and if absent, he is an accessory before the fact.38 Where a person in attempting to commit suicide accidentally kills another, he is guilty of felonious homicide. But whether the offense is murder or manslaughter is a question upon which the courts express doubt.39 Where two persons enter into a compact to kill themselves together and the means employed causes the death of only one of them the survivor is guilty of murder.40 At common law an attempt to commit suicide is a misdemeanor.41 In some states, however, including Massachusetts, it is not punishable.42 161 Pac. 552; State v. Marino, 91 Vt. 237, 99 Atl. 882; State v. Prettyman, 6 Boyce (29 Del.) 452, 100 Atl. 476; State v. Burton, 172 N. Car. 939, 90 S. E. 561. 36 Commonwealth v. Mink, 123 Mass. 422, 25 Am. Rep. 109, Beale's Cases 206. 37 4 Geo. IV, ch. 52. See also 45 and 46 Vict., ch. 19. 38 Commonwealth v. Mink, 123 Mass. 422, 25 Am. Rep. 109, Beale's Cases 206; Commonwealth V. Bowen, 13 Mass 356, 7 Am. Dec. 154, Wheeler Cr. C. 226; 4 Bl. Comm. 189. See also Burnett v. People, 204 111. 208, 68 N. E. 505, 66 L. R. A. 304, 98 Am. St. 206. 39 Commonwealth v. Mink, 123 Mass. 422, 25 Am. Rep. 109, Beale's Cases 206; State v. Lindsey, 19 Nev. 47, 5 Pac. 822, 3 Am. St. 776; State v. Levelle, 34 S. Car. 120, 13 S. E. 319, 27 Am. St. 799. 40 Reg. v. Alison, 8 Car. & P. 418; Rex v. Tyson, Russ. & R. 523; Reg. v. Jessop, 16 Cox Cr. C. 204, 10 Crim. L. Mag. 862; Rex v. Abbott, 67 J. P. 151. See also Burnett v. People, 204 I11. 208, 68 N. E. 505, 66 L. R. A. 304, 98 Am. St. 206. 41 Reg. v. Doody, 6 Cox Cr. C. 463, Beale's Cases 261; State v. Carney, 69 N. J. L. 478, 55 Atl. 44. 42 Commonwealth v. Dennis, 105 Mass. 162. |