also where the killing occurs in the perpetration of a crime, itself punishable capitally, and where therefore the intent may properly be transferred to the act;-the other, punishable with imprisonment for life or a term of years, including all other cases of murder, where the malice is "implied," contrary to the fact, from the general or particular presumptions of law.

This proposition has not certainly any merit for its originality, as such degrees, with nearly the same limits, are now established in several of the United States, as well as more or less extensively in nearly every foreign country on the globe.

The statute of New Hampshire, (passed January 13, 1837,) provides that "murder hereafter committed by poison, starving, torture, or other premeditated and deliberate killing, (these terms are equivalent to killing with express malice') or which shall be committed in the perpetration or attempt to perpetrate rape, robbery or burglary, may be murder of the first degree; and all other murder shall be murder of the second degree," and provides the punishment of death for the first, and imprisonment for the last.

The laws of several other states are upon this point similar to those of New Hampshire, as in Pennsylvania, (Act March 9th, 1814,) Maryland, (Act 1809, ch. 138, § 3,) Virginia, (Act March 6, 1819, 1 Rev. Code 616-17,) Ohio, (Act Feb. 26, 1824, 22 vol. of Laws 158) and Missouri (Rev. Stat. of 1835, pp. 167-8).

It ought also in fairness to be stated, that such was the law of Rhode Island from 1798 to 1814, when the doctrine of the common law was restored by legislation.

The provisions in the laws of these different states are somewhat variant, though in all founded upon the same general principle. In Ohio, for instance, the first degree is similar to that in New Hampshire; the second, punishable by imprisonment for life, is "where any one purposely, but without deliberate and premeditated malice, kills another," while all other cases of killing, with "implied malice," are reduced to the grade of manslaughter.

In other states, of which New York is an eminent instance,

much has been done by alterations in the statute law, giving a more limited effect to the definition of murder, or reducing to the class of misdemeanors what were felonies at the common law, (so as to exclude the idea of malice in the case of killing accidentally in the commission of simple larceny, for instance,) to restrain within reasonable limits this wide extended implication of malice, and to punish as manslaughter only, what the common law denominates and punishes as murder.

(2 Rev. Stat. of N. Y. ch. 56, § 4, § 5, § 9, and amendment 3 R. S. app. 158, § 58.)

See also the remarks of chancellor Walworth, as to the object of these provisions; Enoch's C. 13 Wendell, 175.

The commissioners have examined with great care the codes and treatises upon the criminal law of foreign countries; and be. lieve that they can state confidently, that in no civilized community, (excepting such as derive their institutions of punishment from the common law of England,) even where their codes are the most sanguinary, is there provided the punishment of death for any other killing, than that which is wilful and premeditated. Most of these indeed have many degrees of culpable homicide, less than murder, according to the circumstances, as has also Mr. Livingston in his code; a course, which indeed justice and policy would alike require here, were it not for the wide discretion as to the duration of the punishment of imprisonment, which the general course of our legislation has entrusted to our courts, and which the commissioners have, in accordance with general usage, made use of here; leaving the extent of the punishment in cases of killing with implied malice in each case to be determined by the courts according to its circumstances.

With this brief exposition of the reasons of their opinion, the commissioners commend the subject anew to the careful examination and considerate decision of the legislature.

HOMICIDE.

I. MURDER.

SECTION I. Whoever shall unlawfully kill any human. being, with malice aforethought either express or implied, shall be deemed guilty of murder.'

SECTION II. Whoever shall commit murder, with express malice aforethought, or in the perpetration or attempt to perpetrate any other crime punishable with death shall be deemed guilty of murder in the first degree, and shall be punished with death."

SECTION III. Whoever shall commit murder otherwise than as set forth in the last preceding section, shall be deemed guilty of murder in the second degree, and shall be punished by confinement in the state prison for life, or for any number of years.2

1 The commissioners propose, in the first section, to place the general definition of murder in the common statutory form, for the reasons stated in their general report. They refer, for the varying definitions of murder, at different periods of the common law, to Wilkins's Laws of the Anglo-Saxons, 480; Glanv. L. 14, ch. 31; Horne's Mirror 46; Dalt. ch. 95; St. 14 E. 3, ch. 4; Bracton L. 3, ch. 4, § 1; Britt. ch. 6, § 1; Fleta L. 1, ch. 30; Kelham's Norman Dict., "Murder"; Cowell's Dict., "Murder"; Blount's Law Dict., "Murder"; Cowell's L. Dict., "Murder "; 3 Inst. 47; Staund. B. 1, ch. 10; 1 Hale, 424-5; 1 Hawk. ch. 31, § 3; Vin. Abr. "Murder," A. 1; 2 McNally, 553; Foster, 256; 4 Blk. Com. 198; 1 East, ch. 5, § 2; Bac. Abr. "Murder," A.; Jacob's Law Dict., "Murder "; 2 Ld. Raym. 1487; Kelynge, 121-127; 3d Chitty, 723; 3 Starkie, 513; 1 Russell, (ed. 1831,) 421; Archbold, 818; 2 Deacon, 896; Roscoe, 562; Davis's J. 309; Davis's Cr. L. 92; C. J. Parsons's def. (Selfridge's Tr. 3); Brockenbrough, J., in 6 Randolph's Va. R. 723; 6 Mass. R. 139; 7 Dane's Abr. ch. 212; Halsted's R. 242; Platt, J., 1 Wheeler's C. C. 274; Prince's Digest of Laws of Geo. 346, (1st ed.) 622, (2d ed.); Rev. L. of Indiana, (1831) 180; Rev. L. of Illinois, (1833) 133.

It will be seen, that, for many centuries, "murder" has been used to signify the highest grade of culpable homicide, and the general definitions of different authors are substantially the same.

The definition of lord Coke, (3 Inst. 47) as modified by Mr. Justice Blackstone, (4 Com. 198) is the most celebrated for its fulness and accuracy, and has been copied by nearly all the subsequent writers upon the subject, and adopted, with slight changes, by the courts, and into the statutes of several of the United States. It is: "Murder is where a person, of sound memory and discretion, unlawfully killeth any reasonable creature in being under the king's peace, with malice aforethought, expressed or implied."

The words," of sound memory and discretion,” are omitted in our definition, because the rules governing exemption from punishment for want of capacity are general, applying as well and in the same manner to other offences as this, and therefore belonging to another part of the code.

We omit also the words "in the king's peace," or "in the peace of the state," (as in the definition of Davis, and in the statutes of Georgia, Indiana, and Illinois,) because they are not only unnecessary, but calculated to mislead. For it may be murder to kill a person at the time engaged in the perpetration of a crime, or even an alien enemy, "unless it be in the actual heat and exercise of war" (1 Hale, 433; Archbold, 320); in which case the idea of murder is excluded by other parts of the definition, for then the killing would not be "unlawful," or "with malice." These words are unnecessary in an indictment; (3 Chitty, 75; 1 East, 345.)

We have substituted "any human being," for "any reasonable creature in being," because the former expression is more simple, and less liable to misapprehension; for, in a popular sense, an idiot is not a reasonable creature, and yet he may as well be the subject of murder as any other human being. The word "malice" is here used in a peculiar sense, differing from its more obvious and popular meaning, yet it has been so wrought into the law of murder, and has obtained, in this application, so precise and peculiar a signification, that the substitution of any other word would lead to much doubtful interpretation. With the use of any substitute, indeed, we could not be sure that we had accurately stated the law.

As will be seen more fully hereafter, "express malice" means generally, malice proved to have existed in fact; "implied malice," such as the law presumes, often contrary to the fact.

2 The second and third sections are proposed as a substitute for § 1, ch. 125, of Part 4 of Rev. Stat., which is as follows, (pp. 716): "Every person, who shall commit the crime of murder, shall suffer the punishment of death for the same."

The reasons for this proposition are fully stated in the preliminary note. The slight change in the procedure, which it will occasion, is provided for in another part of the code.

EXPOSITION.

In order to constitute the crime of murder, as above defined: 1st. There must be a killing;

2d. The killing must be of a human being;

3d. It must be unlawful;

4th. It must be with malice.

And all these elements must be combined in every case of this offence. For, if there be not the first, or only the first, it is no homicide; if there be the first and second only, without the others, it is "justifiable or excusable homicide;" if there be the first, second and third, without the fourth, it is "manslaughter " * only; but where all concur, it is murder.

2

'In England, there has been a material distinction between "justifiable homicide" and "excusable homicide;" and many cases of the killing of a human being by misadventure, or in self-defence, were of the latter class. The term "excusable homicide" imported some fault, but of a nature so trifling that the law did not stamp it with the guilt of felony. In theory, it was punished with a forfeiture of goods, but in early times the jury finding the fact specially, a general pardon was always granted, under the statute of Gloucester, (6 Ed. I. ch.9) which saved the forfeiture. Afterwards, the judges permitted a general verdict of "not guilty to be rendered, though for some time, it would seem, without any authority of law. The statute 9 Geo. 4, ch. 31, § 10, put an end to the theory, and sanctioned the practice of acquittal, by enacting, that "no punishment or forfeiture shall be incurred by any person, who shall kill another by misfortune or in his own defence, or in any other manner, without felony; " but the old terms, though they import no legal distinction, are still preserved in the English books for convenience. With us, where the doctrine of forfeiture never took root, and is prohibited by the constitution, there was never any punishment for excusable homicide, nor other difference as to the legal effect between that and justifiable homicide; but if a case belonged to either class, the defendant was entitled to a general acquittal. See, upon this subject, 3d Inst. 148; 4 Black. Com. 188; 1 Hawk. ch. 28, § 1 & 22; ch. 29, § 30 et seq.; 1 East, ch. 6, § 8 & 36; Foster, 282-8; 1 Russell, 538-552; Roscoe, 464; Parker, J., Selfridge's Trial, 159. We use both terms in the course of the chapter, because the one is sometimes more appropriate than the other, regard being had to the natural and customary import of the words, and not to mark any discrimination as to legal consequences. For the law of manslaughter, see the next chapter.