palliation and persuasion; there was nothing to show that resistance was absolutely useless; she had possession of her faculties of mind and body, and retained her consciousness; she was then capable of resistance up to the point of being overpowered by actual force. The request to charge is not beyond the limit of the rule. Certainly, if a female apprehending the purpose of a man to be that of having carnal knowledge of her person, and remaining conscious, does not use all her own powers of resistance and defense, and all her powers of calling others to her aid, and does yield before being overcome by greater force or by fear, or being surrounded by hostile numbers, a jury may infer that at some time in the course of the act, it was not against her will. Affirmed. P. v.

*

Dohring, 59 N. Y. 374, 17 Am. Rep. 349, F. 226.

(Conn. Sup. Ct. of Errors, 1877.) Same. PARK, C. J. * The defendant requested the court to charge the jury, that to constitute the crime of rape it was necessary that the prosecutrix should have manifested the utmost reluctance, and should have made the utmost resistance. The court did not comply with this request, and the refusal to do so is made the ground for asking a new trial. While it may be expected in such cases from the nature of the crime that the utmost reluctance would be manifested, and the utmost resistance made which the circumstances of a particular case would allow, still, to hold as matter of law that such manifestation and resistance are essential to the existance of the crime, so that the crime could not be committed if they were wanting, would be going farther than any well-considered case in criminal law has hitherto gone. Such manifestation and resistance may have been prevented by terror caused by threats of instant death, or by the exhibition of brutal force which made resistance utterly useless; and other causes may have prevented such extreme opposition and resistance as the request makes essential. The importance of resistance is simply to show two elements in the crime-carnal knowledge by force by one of the parties, and non-consent thereto by the other. These are essential elements, and the jury must be fully satisfied of their existence in every case by the resistance of the complainant, if she had the use of her faculties and physical powers at the time, and was not prevented by terror or the exhibition of brutal force. So far resistance by the complainant is important and necessary; but to make the crime hinge on the uttermost exertion the woman was physically capable of making, would be reproach to the law as well as to common sense. Such a test it would be exceedingly difficult, if not impossible, to apply in a given case. A complainant may have exerted herself to the uttermost limit of her strength, and may have continued to do so till the crime was consummated, still a jury, sitting coolly in deliberation upon the transaction, could not possibly determine whether or not the limit of her strength had been reached. They could never ascertain to any great degree of certainty what effect the

excitement and terror may have had upon her physical system. Such excitement takes away the strength of one, and multiplies the strength of another. * * The fallacy lies in the assumption

that the deficiency in such cases necessarily shows consent.

We do not advise a new trial.

S. v. Shields, 45 Conn. 256, Mi. 547.

HOMICIDE.

§ 103. Definition and Classification. Homicide is the killing of a human being by a human being. Homicides are of two kinds: 1, justifiable or excusable (which we have considered, ante §§ 49-51, 64-72); and, 2, felonious. Felonious homicide is homicide without justification or excuse, in which death results within a year and a day after the injury (3 Coke Inst. 47), and is either (1) murder or (2) manslaughter. Manslaughter is either (a) voluntary or (b) involuntary.

§ 104. Murder.

Defined. Murder is homicide with malice aforethought. Malice aforethought is a technical term with a historic meaning in law entirely different from the popular meaning. In substance it is any state of mind and circumstances which in the history of the law has been held to render and, therefore, is now deemed to constitute, the homicide murder, spoken of as a mind depraved, devoid of a sense of social duty, and fatally bent on evil; but principally it is homicide: 1, premeditated and deliberate, as by lying in wait, poisoning, etc.; 2, by any act intended to produce death and not done in the heat of extreme passion caused by sufficient provocation; 3, by any act itself dangerous to life and showing a reckless disregard of human safety, as with a deadly weapon; 4, unintentionally resulting from an attempt to commit another felony; and 5, unintentionally in unlawfully opposing an officer or other person engaged in arresting or keeping custody of a prisoner. Degrees of murder are created by statute in most of the states, and 1 and 2, above, and some others, are made murder in the first degree. In some states there are three degrees of murder. Consult the statutes, also 2 Bishop C. L. § 723 et seq.

Intent to kill different person: Saunders's Case, § 38; Gore's Case, § 38. Starvation of child, if intentional, is murder: R. v. Conde, § 63. Suicide intended: C. v. Mink. § 38. Duress and necessity as defense, §§ 48-51. Rape resulting in death from venereal disease is murder: R. v. Greenwood, § 63.

(Eng. Queen's Bench, 1587.) Homicide in Resisting an Officer. In this case it was held per totam curiam that if, upon an affray, the constable and others in his assistance come to suppress the affray and preserve the peace, and in executing their office the constable or any of his assistants is killed, it is murder in law, although the murderer knew not the party that was killed, and although the affray was sudden; because the constable and his assistants came by authority of law to keep the peace, and prevent the danger which might ensue by the breach of it; and, therefore, the law will adjudge it murder, and that the murderer had malice prepense, because he set himself against the justice of the realm. So if the sheriff or any of his bailiffs or other officers is killed in executing the process of the law, or in doing their duty, it is murder; the same law of a watchman, who is killed in the execution of his office. Yong's Case, 4 Coke 40a, B. 462.

On

(Eng. Old Bailey, 1666.) Punishment with Deadly Weapon. trial of John Grey, at Old Bailey, on indictment for murder, the jury found specially that the prisoner was a blacksmith, and commanded Golding, his servant, to mend some straps, part of his trade; and, coming in, finding it not done, Gray asked why, and said if Golding would not serve him he should serve in Bridewell; to which Golding said he would as well as serve Grey; on which, without other provocation, Grey struck him with a bar of iron Grey had in his hand, on which he and Golding were working at the anvil. This blow broke his skull and he died; and if this was murder, was the question. And Kelyng, J., who sat in the case, showed the special verdict to all the judges of the king's bench, and to Lord Bridgman, C. J., of the common pleas; and they were all of opinion that it was murder; for if a father, master, or schoolmaster will correct his child, servant, or scholar, they must do it with such things as are fit for correction, and not with such instruments as may probably kill them; for otherwise, under pretense of correction, a parent might kill his child, or a master his servant, or a schoolmaster his scholar; and a bar of iron is no instrument for correction. It is all one as if he had run him through with a sword. The judges remembered several cases at assizes in which like acts had been held murder. Therefore, when a master strikes his servant willingly with such things as these and death ensue, the law will judge it of malice prepense. But, for his good repute, the prisoner in this case was given pardon by the king, on request of the court. Grey's Case, Kelyng 64, B. 463, Ke. 105, Mi. 400.

(Eng. Old Bailey, 166-) Homicide of Peacemaker. On indictment for murder the jury found specially that Tomson and wife. were fighting in Dawes's house, who, seeing them fighting, came in and endeavored to part them, whereon Tomson thrust him aside, and threw him on the iron chimney bar, which kept the fire; and by that

a rib was broken, and he died. And Kelyng, J., who sat in the case, took the advice of Hyde, C. J., and Hales, B.; and they agreed in view of Yong's Case and Mackalley's Case, 9 Coke 65, "that if upon a sudden affray, a constable or watchman, or any that come in aid of them, who endeavor to part them, are killed, this is murder; and we hold likewise that if no constable or watchman be there, if any other person come to part them, and he be killed, this is murder; for every one in such case is bound to aid and preserve the king's peace. But in all those cases it is necessary that the party who was fighting and killed him that came to part them, did know or had notice given that they came for that purpose. As for the constable or other person who cometh to part them, to charge them in the king's name to keep the king's peace, by which they have notice of their intents; for otherwise if two are fighting, and a stranger runs in with intent to part them, yet the party who is fighting may think he cometh in aid of the other with whom he is fighting, unless some such notice be given as aforesaid, that he was a constable and came to part them; and that appeareth by Mackalley's case before cited, where in case of an arrest by a sergeant, it is necessary, to make it murder, that the sergeant tell him that he doth arrest, for else if he doth say nothing, but fall upon the man and be killed by him, this is but manslaughter, unless it appear that the person arrested did know him to be a sergeant, and that he came to arrest him; for as the case is there put, if one seeing the sheriff or a sergeant whom he knoweth hath a warrant to arrest him, and to prevent it before the officer come so near as to let him know he doth arrest him, he shoots again at him, and kills him, this is murder; and in the principal case, though the jury find that Dawes came to part the man and wife, yet it doth not appear whether it is found that Tomson knew his intent, nor that Dawes spake any words whereby he might understand his intention, as charging them to keep the king's peace, etc., and so we held it to be only manslaughter, which in law is properly chance-medley, that is, where one man upon a sudden occasion kills another without malice in fact, or malice implied by law." R. v. Tomson, Kelyng 66, B. 462.

(Eng. Assize at Newgate, 1674.) Homicide of Citizen in Pursuit of Felon. Five persons committed a robbery, the party robbed raised hue and cry, the country pursued, and at Hempstead, Jackson, one of the five turned upon his pursuers, the rest being in the same feld, and having often resisted the pursuers, and refusing to yield, killed one of the pursuers. By five judges * it was ruled:

1.

That this was murder; because the country, upon hue and cry levied, are authorized by law to pursue and apprehend the malefactors; and in this case here was a felony done, and a felony done by those persons that were thus pursued. 2. That, although there was no warrant of a justice of peace to raise hue and cry, and though there was no constable in the pursuit, yet the hue and cry was a

good warrant in law for them to apprehend the offenders, and the killing of any of the pursuants by Jackson was murder. 3. Inasmuch as all of the robbers were of a company, and made a common resistance, and so one animated the other, all those of the company of the robbers that were in the same field, though at a distance from Jackson, were all principals, viz., present, aiding, and abetting. 4. That when one of the malefactors was apprehended a little before the party was hurt, that person being in custody when the stroke was given was not guilty, unless it could be proved that after he was apprehended he had animated Jackson to kill the party. They had all judgment of death for the robbery, and four of them for the murder. R. v. Jackson, 1 Hale P. C. 464.

*

(Eng. Maidstone Assize, 1838.) Wilfully Persisting in Dangerous Course Following Fanatic. One Thom, a religious fanatic, of whom the defendants were adherents and followers, shot a constable in their presence; and on their trial for murder, as principals, this instruction was given to the jury by DENMAN, C. J. *It will be for you to say whether, from what was done by these men both before and after the killing of Nicholas Meares, they did not intend this general resistance to the law. In speaking of malice aforethought it is proper that you should know that that expression does not mean premeditated personal hatred or revenge against the person killed; but it means that kind of unlawful purpose which, if persevered in, must produce mischief, such as if accompanied with those circumstances that show the heart to be perversely wicked, is adjudged to be proof of malice prepense. Verdict, guilty. R. v. Tyler, 8 Car. & P. (34 E. C. L.) 616, F. 116, Ke. 57.

*

*

Murder by poison given by innocent agent: Memo., § 74; Vaux's Case, § 74.

(Mass. Sup. Judicial Ct., 1845.) Malice Defined-Burden of Proof of Provocation. Defendant was convicted of murder of J. Norton; and moved for a new trial on the ground that the court erred in directing the jury that if they found that he killed Norton by stabbing him to the heart with a knife, there is a presumption of malice in law to convict him of murder if nothing further is shown; and the burden of proof of matter of excuse (in this case, provocation) lies with the accused. In the opinion of the majority, written by SHAW, C. J., it was conceded that in cases of homicide by wanton and reckless negligence indicating a heart devoid of humanity and maliciously bent on mischief, the malice must be inferred from the circumstances, and the court might properly direct the jury to find manslaughter only, if there is a reasonable doubt on all the evidence whether malice is shown. But they held that when death is produced by an act intended to have that effect, or which would naturally and probably produce death or great bodily harm, as in this case, the act shows the malice, and the excuse must be shown by the defendant. Shaw, C. J., said: "But, however, suddenly any act