is not indictable. For a full discussion of the law on this subject, see 2 Whart. Crim. L. (8th ed.), secs. 1337, 1406. See sec. 1104.

2. Indictment for Conspiracy.-Sec. 1104, n. 2.

3. Evidence of Conspiracy.-Sec. 1104, n. 3.

183. No conspiracies, other than those enumerated in the preceding section, are punishable criminally.

184. No agreement, except to commit a felony upon the person of another, or to commit arson, or burglary, amounts to a conspiracy, unless some act, beside such agreement, be done to effect the object thereof, by one or more of the parties to such agreement.

1. The Common Law Rule is changed by this section, for by the common law the conspiracy was complete when the confederacy was made, and any act done in pursuance of the confederacy is simply an aggravation of the offense. Com. v. Judd, 2 Mass. 329; Rex v. Edwards, 8 Mod. 320; Rex v. The Journeymen Tailors, Id. 11; Rex v. Robinson, 1 Leach C. C. (4th ed.) 37. 185. It shall be unlawful for any person to wear any mask, false whiskers, or any personal disguise (whether complete or partial) for the purpose of:

1. Evading or escaping discovery, recognition, or identification in the commission of any public offense;

2. Concealment, flight, or escape, when charged with, arrested for, or convicted of, any public offense. Any person violating any of the provisions of this section shall be deemed guilty of a misdemeanor. [New section, approved March 30, 1874; in effect July 1, 1874.

TITLE VIII.

OF CRIMES AGAINST THE PERSON.

CHAPTER I. HOMICIDE, $$187-199.

II. MAYHEM, §§203-204.

III. KIDNAPING, §§207-208.

IV. ROBBERY, §§211-213.

V. ATTEMPTS TO KILL, §§216-217.

VI. ASSAULTS WITH INTENT TO COMMIT FELONY, OTHER THAN

ASSAULTS WITH Intent to MURDER, §§220-222.

VII. DUELS AND CHALLENGES, §§225-232.

VIII. FALSE IMPRISONMENT, §§236-237.

IX. ASSAULT AND BATTERY, §§240-245.

X. LIBEL, §§248-257.

192. Manslaughter defined. Voluntary and involuntary manslaughter.

193. Punishment of manslaughter.

194. Deceased must die within a year and a day.

195. Excusable homicide.

196. Justifiable homicide by public officers.

197. Justifiable homicide by other persons.

198. Bare fear not to justify killing.

199. Justifiable and excusable homicide not punishable.

187. Murder is the unlawful killing of a human being with malice aforethought.

1. Murder is the killing of any person under the king's peace, with malice prepense or aforethought, either express or implied by law. 1 Russ. on Crimes, 421. Or as defined by Sir Edward Coke, the offense is committed "when a person of sound mind and discretion unlawfully killeth any reasonable creature in being, and under the king's peace, with malice aforethought, either express or implied." 3 Inst. 47. This definition is accepted by Blackstone, 4 Com. 196. This definition has, however, been severely criticised. Livingston, Pen. Law, 186. Another definition is, that the crime consists in "the willful killing of any subject whatsoever, through malice aforethought." 1 Hawk. P. C., sec. 3. But "a better definition," says a learned writer on criminal law, "is the following: murder is any act committed from what the law deems a depraved mind, fully bent on evil, the result of which act is the death of a human being within a year and a day from the time of its commission." 2 Bish. Crim. L., sec. 652. The term "murder" has not two meanings, nor can it be construed in two different ways. It means simply, as it has always meant in this state, the unlawful killing of a human being with malice aforethought, either express or implied. People v. Haun, 44 Cal. 96. It is murder to kill a person, though he be already mortally wounded by another. People v. Ah Fat, 48 Cal. 61. If the wound be inflicted with felonious intent and death ensue from the effects of the wound at any time within a year and a day, it is murder. People v. Steventon, 9 Cal. 273. See sec. 194. A child in its mother's womb is not a "human being" within the meaning of that term as used to define murder. The rule is that the child must be born, and that every part of it must have come from the mother before the killing, otherwise it will not be murder. Rex v. Brain, 6 Car. & P. 349; Rex v. Crutchley, 7 Id. 814; Rex v. Poulton, 5 Id. 329.

2. Murder and Manslaughter.-Whether a homicide amounts to murder, or to manslaughter merely, does not depend upon the presence or absence of the intent to kill. In either case there may be a present intention to kill

at the moment of the commission of the act. People v. Freel, 48 Cal. 436; see sec. 192, n. 1.

3. Malice. In its legal sense malice does not mean mere hatred and illwill, but denotes an intent to do an unlawful act, without legal justification or excuse. But evidence of previous hatred and ill-will is always admissible as tending to prove active or legal malice at the time of the homicide. People v. Taylor, 36 Cal. 255. It means a wrongful act, done intentionally, without just cause or excuse. Maynard v. F. F. Ins. Co., 34 Id. 48; see sec. 7, subd. 4. The rule is well settled, that where an unlawful killing is proved, malice will be presumed, and the burden of proof will be thrown on the defendant to show the absence or want of malice. Reg. v. Maloney, 9 Cox C. C. 6; Com. v. Webster, 5 Cush. 295; see sec. 1105, n.

188. Such malice may be express or implied. It is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow-creature. It is implied, when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.

1. Malice Aforethought.-Sec. 187, n. 3. The killing must be committed with malice aforethought to constitute the crime of murder. This is the grand criterion which distinguishes murder from other killing; and this malice prepense is not so properly spite or malevolence to the deceased in particular, as any evil design in general: the dictate of a wicked, depraved, and malignant heart; and it may be either express or implied in law. 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 to do him some bodily harm. 4 Bl. Com. 198. No better definition of implied malice can be found than that given in the section. People v. Williams, 43 Cal. 349. A very able authority denies that there is any distinction between "malice express" and "malice implied." Our only way of proving malice is by inferring it from circumstances. Even should a party when examined on the stand say, "I did the act maliciously," the question would still remain, how far the statement is to be believed. The mode of proof is not demonstration, but inference. 1 Whart. Crim. L. (8th ed.), sec. 113; Whart. Crim. Ev., secs. 7, 735, 739.

189. All murder which is perpetrated by means of poison, or lying in wait, torture, or by any other kind of willful, deliberate, and premeditated killing, or which is committed in the perpetration or attempt to perpetrate arson, rape, robbery, burglary, or mayhem, is murder of the first degree; and all other kinds of murders are of the second degree. [Amendment, approved March 30, 1874; in effect, July 1, 1874.

1. Statutory Division of Murder into Degrees. The common law recognizes no distinction between different kinds of murder. In most of the United States, however, the offense has by statute been divided into degrees, only one of which, if either, is punished capitally. Whart. on Hom., secs. 170, 171. Where the distinction is thus made, the statute usually divides

the crime into two degrees; in Florida, Minnesota, and Wisconsin, however, murder is divided into three degrees. In Colorado, Dakota, Georgia, Illinois, Kentucky, Louisiana, Mississippi, North Carolina, Rhode Island, and South Carolina, there is no division of murder into degrees, but in some of these states the same object is accomplished, by giving the jury power to fix the penalty at death or imprisonment, in their discretion.

The object intended to be accomplished by the statute is plain. The supreme court of California has said: "In dividing murder into two degrees, the legislature intended to assign to the first, as deserving of greater punishment, all murders of a cruel and aggravated character; and to the second, all other kinds of murder, which are murder at common law, and to establish a test by which the degree of every case of murder may be readily ascertained. That test may be thus stated: Is the killing willful (that is to say, intentional), deliberate, and premeditated? If it is, the case falls within the first, and if not, within the second degree. There are certain kinds of murder which carry with them conclusive evidence of premeditation. These the legislature has enumerated in the statute, and has taken upon itself the responsibility of saying that they shall be deemed and held to be murder of the first degree. These cases are of two classes. First, where the killing is perpetrated by means of poison, etc. Here the means used is held to be conclusive evidence of premeditation. The second is, where the killing is done in the perpetration, or the attempt to perpetrate, some one of the felonies enumerated in the statute. Here the occasion is made conclusive evidence of premeditation. Where the case comes within either of these classes, the test question Is the killing willful, deliberate, and premeditated?'-is answered by the statute itself, and the jury have no option but to find the prisoner guilty in the first degree. Hence, so far as these two classes are concerned, all difficulty as to the question of degree is removed by the statute. But there is another and much larger class of cases included in the definition of murder in the first degree, which are of equal cruelty and aggravation with those enumerated, and which, owing to the different and countless forms which murder assumes, it is impossible to describe in the statute. In this class the legislature leaves the jury to determine, from all the evidence before them, the degree of crime, but prescribes, for the government of their deliberations, the same test which has been used by itself in determining the degree of the other two classes, to wit: the deliberate and preconceived intent to kill. Thus the three classes of cases which constitute murder of the first degree are made to stand upon the same principle. It is only in the latter class of cases that any difficulty is experienced in drawing the distinction between murder of the first and murder of the second degree, and this difficulty is more apparent than real. The unlawful killing must be accompanied with a deliberate and clear intent to take life, in order to constitute murder of the first degree. The intent to kill must be the result of deliberate premeditation; it must be formed upon a pre-existing reflection, and not upon a sudden heat of passion sufficient to preclude the idea of deliberation. There need be no appreciable space of time between the intention to kill and the act of killing; they may be as instantaneous as successive thoughts of the mind. It is only necessary that the act of killing be preceded by a concurrence of will, deliberation, and premeditation on the part of the slayer; and if such is the case, the killing is murder of the first degree, no matter how rapidly these acts of the mind may succeed each other, or how quickly they may be followed by the act of kill

ing.” People v. Sanchez, 24 Cal. 17. The distinction between murder in the first and murder in the second degree is also pointed out in People v. Bealoba, 17 Id. 389; People v. Foren, 25 Id. 361; People v. Barry, 31 Id. 357; People v. Nichol, 34 Id. 211; People v. Long, 39 Id. 694; People v. Doyell, 48 Id. 85; People v. Welch, 49 Id. 174; People v. Cotta, 49 Id. 166.

2. Deliberation and Premeditation. In the authorities above noted, it is held that an intent to kill is not alone sufficient to make an unlawful homicide murder in the first degree. There must also be deliberation and premeditation. The words "willful, deliberate, and premeditated," clearly mean more than intentional. But there need be no appreciable space of time between the formation of the intention to kill and the act of killing-they may be as instantaneous as successive thoughts of the mind. If the act of killing be preceded by a concurrence of will, deliberation, and premeditation on the part of the slayer, it is murder in the first degree, no matter how rapidly these acts of the mind may succeed each other, or how quickly they may be followed by the act of killing. People v. Nichol, 34 Cal. 211; People v. Long, 39 Id. 694; People v. Williams, 43 Id. 344; People v. Cotta, 49 Id. 166; State v. Ah Mook, 12 Nev. 369; McAdams v. State, 25 Ark. 405. The statute, in specifying certain kinds of homicide as constituting murder in the first degree, as where it is perpetrated by poison, lying in wait, etc., and then adds "or any other willful, deliberate, and premeditated killing," does not import that the instances enumerated shall furnish the standard of deliberation and premeditation, and that no murder is of the first degree unless perpetrated with equal forethought and calculation. Burgess v. Com., 2 Va. Ca. 483; Com. v. Jones, 1 Leigh, 610; Whiteford v. Com., 6 Rand. 721; 18 Am. Dec. 771. Deliberation and premeditation are not presumed from the mere fact of unlawful homicide, but they may be inferred from the circumstances surrounding the killing. The question of the premeditation and deliberation of the defendant is one which it is peculiarly the province of the jury to determine. People v. Valencia, 43 Cal. 552. Evidence of threats, of preparation of weapons, search for the victim, nature of the instrument used, the manner of using it, etc., is competent to prove the premeditation. See Respublica v. Bob, 4 Dall. 145; Com. v. Williams, 2 Ashm. 69; Bivens v. State, 6 Eng. 455; Fields v. State, 52 Ala. 348.

3. The Indictment should not state the degree of murder with which the defendant is charged. It is not the province of the grand jury to determine the degree; that duty is, by statute, expressly cast upon the trial jury. But if the indictment does state the degree, it does not vitiate it-the statement of the degree will be treated as surplusage. People v. King, 27 Cal. 507; People v. Nichol, 34 Id. 211. The trial jury in their verdict should expressly state the degree of murder of which they find the defendant guilty. People v. Campbell, 40 Id. 129. See sec. 959.

4. Drunkenness.—Where the homicide is not committed by means of poison, lying in wait, or torture, or in the perpetration or attempt to perpetrate arson, rape, robbery, burglary, or mayhem, the degree of the offense depends entirely upon the question whether the killing was willful, deliberate, and premeditated; and upon that question it is proper for the jury to consider evidence of intoxication, not upon the ground that drunkenness renders a criminal act less criminal, or can be received in extenuation or excuse, but upon the ground that the condition of the defendant's mind at the time