66 a better definition," says Mr. Bishop (2 Bishop's Cr. defined. 188. Such malice may be express or implied. It Malice 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. NOTE. This section is based upon Section 20 of the Act of 1850 (Stats. 1850, p. 231), and part of Section 21 of same Act, as amended in 1856.-Stats. 1856, p. 219. Section 20 is as follows: "Express malice is that deliberate intention unlawfully to take away the life of a fellow creature which is manifested by external circumstances, capable of proof." This section did not pretend to define implied malice, but in Section 21, which was denoted chiefly to a division of murder into degrees, it is declared that "malice shall be implied when no considerable provocation appears, or when all the circumstances of the killing show an abandoned and malignant heart." It is very clear that neither definition is complete when the term malice is used in a general sense, as it is used in the sections cited. The Commission have placed the definition of malice express and malice implied in the same section, and limited the definition to that malice which is an ingredient of murder; they omit from the definition of express malice the phrase "by external circumstances Degrees of Am ? 1574 capable of proof," for that phrase performs no office in the section, and constitutes at best a very indifferent definition of the word "manifested," which precedes it. "Malice in a legal sense means a wrongful act done intentionally without just cause or excuse."-Maynard vs. F. F. Ins. Co., 34 Cal., p. 48. See Sec. 7, Subd. 4, for a general definition of malice. 189. (§ 21.) 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, or burglary, is murder of the first degree; and all other kinds of murder are of the second degree. NOTE. This section is founded upon Sec. 21 of the Crimes and Punishment Act, as amended by the Act of 1856.-Stats. 1856, p. 219. The Commission made no material change in the language. They have taken from Sec. 21 the definition of implied malice and the clause fixing the punishment of murder and the provision for determining the degree, and inserted them in this work, in their appropriate places. At common law every unlawful killing of a human being, with malice aforethought, was punishable by death, but as such killings differed greatly from each other in the degree of atrociousness, the manifest injustice of involv ing them all in the same punishment led to the enactment of statutes dividing murder into two degrees, and affixing to murders of the second degree milder punishments than to those of the first. Among the first enactments to this end was the Pennsylvania statute of April 22d, 1794, of which ours is a copy. Since the enactment of the former, no subject has been the source of more patient judicial investigation than the distinction between the two degrees of murder. The jurist and the student, in passing over the numerous adjudications upon this most important subject, found it involved in obscurity. After all that had been written upon this topic, it remained for the Supreme Court of this State to be the first to draw the distinction between the two degrees of murder, in language so clear, explicit, and satisfactory as to put the matter forever at rest. In The People vs. Vincente Sanchez, 24 Cal., p. 29, Chief Justice Sanderson, speaking for the Court, says: "In . dividing murder into two degrees, the Legislature in tended 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 évidence 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 Punish- (lend 1874 Petit be formed upon a preëxisting 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 killing."-See, also, People vs. Bealoba, 17 Cal., p. 389; People vs. Foren, 25 Cal., p. 361; People vs. Pool, 27 Cal., p. 572; People vs. Nichol, 34 Cal., p. 211; People vs. Long, 39 Cal., p. 694. So far as the degree is concerned no presumption arises from the mere fact of killing.-People vs. Belencia, 21 Cal., p. 544. 190. (§ 21.) Every person guilty of murder in the first degree shall suffer death, and every person guilty of murder in the second degree is punishable by imprisonment in the State Prison not less than ten years. 191. (§ 39.) The rules of the common law, distinabolished. guishing the killing of a master by his servant, and of a husband by his wife, as petit treason, are abolished, and these offenses are homicides, punishable in the manner prescribed by this Chapter. NOTE.-Petit treason, according to the statute of 25. Edw. III, Chap. 2, might happen three ways: by a servant killing his master, a wife her husband, or an ecclesiastical person (either secular or regular) his superior, to whom he owed faith and obedience. Petit treason was but an aggravated degree of murder. The distinction between it and murder was abolished in England by statute of 9 Geo. IV, Chap. 31, Sec. 2. The punishment of petit treason in a man was to be drawn and quartered; in a woman to be drawn and burned.-4 Bl. Com., p. 204. 192. Manslaughter is the unlawful killing of a human being, without malice. It is of two kinds: 1. Voluntary-upon a sudden quarrel or heat of slaughter. passion. 2. Involuntary-in the commission of an unlawful act, not amounting to felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection. NOTE. This section embodies the material portions of Sections 22, 23, 24, and 25 of the Crimes and Punish- MALICE.-The distinguishing feature between murder Subd. 1.-Wharton defines voluntary manslaughter to be "the unlawful killing of another, without malice, on sudden quarrel or in heat of passion."-2 Wharton Cr. Law, p. 932. If, upon a sudden quarrel, two persons fight, and one of them kills the other, this is voluntary manslaughter; and so, if they upon such occasion go out and fight, for this is one continued act of passion. So, also, if a man be greatly provoked by any gross indignity and immediately kills his aggressor, it is voluntary manslaughter; it is not excusable homicide, because it is not in self-defense; nor is it murder, for malice is wanting.-4 Bl. Com., p. 191; 1 Hawk. P. C., Chap. 30, Sec. 3; 1 Hale P. C., p. 449; 2 Wharton's Cr. Law, Sec. 932; Wharton on Homicide, pp. 35-417: Stokes vs. State, 18 Geo., p. 17; State vs. Norris, 1 Hay., p. 429. In cases of mutual combat, in order to reduce the offense to manslaughter, it must appear that the contest was waged on equal terms and no undue advantage was sought or taken by the defendant.People vs. Sanchez, 24 Cal., p. 17. Subd. 2.-"Involuntary manslaughter is where a lawful in itself, but in an unlawful manner, and death ment of 193. (§ 26.) Manslaughter is punishable by im- Punishprisonment in the State Prison not exceeding ten manyears. slaughter. |