doubt. Malice may also be implied from the act of killing, as if the killing is done purposely and without justification, legal excuse or reasonable provocation. And if the act is perpetrated with a deadly weapon so used as to be likely to produce death, the purpose to kill may be inferred from the act. Boyle v. State, 105 Ind. 469, 55 Am. Rep. 218.

When the scienter or quo animo becomes an essential factor in the problem of guilt or innocence to be solved, when proof of malice becomes indispensable to a conviction, such evidence of other like acts may then be competent. Whart. Am. Crim. L. 649. It is so when proof of the motive becomes peculiarly material on account of some peculiarity of the crime, or its dependence on some peculiar motive, when the act is innocent as a rule, and its criminality the exception. State v. Lapage, 57 N. H. 245, 24 Am. Rep. 69.

§ 276. Burden of Proof as to.-Where the commission of a homicide by the defendant is proved, the law presumes it to have been done with malice, and the burden of proving circumstances of mitigation, or that justify or excuse it, devolve upon him, unless the proof on the part of the prosecution tends to show that it only amounted to manslaughter, or that the defendant was justifiable or excusable. People v. Bush, 71 Cal. 602; Thomas v. People, 67 N. Y. 218; State v. Lautenschlager, 22 Minn. 514; Meyers v. Com. 83 Pa. 131; State v. Zeibart, 40 Iowa, 169.

§ 277. Intoxication as Affecting Malice.-In State v. Johnson, 40 Conn. 136, to convict of murder in the first degree it was necessary to show willful, deliberate intent and actual malice. The court said: "But the real question is, whether drunkenness, as a fact, may be considered by the jury as evidence tending to disprove an essential fact in the case, a deliberate intention to take life." Upon the question of malice, "the state of the prisoner's mind is material. In behalf of the defense, insanity, intoxication or any other fact which tends to prove that the prisoner was incapable of deliberation, was competent evidence for the jury to weigh. Intoxication is admissible in such cases, not as an excuse for crime, not in mitigation of punishment, but as tending to show that the less and not the greater offense was in fact committed." Lancaster v. State, 2 Leigh, 575, 3 Am. Crim. Rep. 160, note.

If defendant was at the time of committing the act intoxicated,

the jury will consider that fact as an evidence tending to show an absence of premeditation or deliberation. New York Code Crim. Proc. title 1, p. 5, § 22; 1 Whart. Am. Crim. L. § 41; Haile v. State, 11 Humph. 154; Com. v. Jones, 1 Leigh. 598; Pirtle v. State, 9 Humph. 663; Swan v. State, 4 Humph. 136; Boswell v. Com. 20 Gratt. 860; Lancaster v. State, 2 Lea, 575; Schlencker v. State, 9 Neb. 241; People v. Rogers, 18 N. Y. 9, 72 Am. Dec. 484; People v. Belencia, 21 Cal. 544; Ferrell v. State, 43 Tex. 503; Colbath v. State, 2 Tex. App. 391; Whart. Hom. § 587, et seq.; Com. v. Dorsey, 103 Mass. 412; Kelly v. Com. 1 Grant, Cas. 484; Keenan v. Com. 44 Pa. 55, 84 Am. Dec. 414; Jones v. Com. 75 Pa. 403; State v. Johnson, 40 Conn. 136; People v. Williams, 43 Cal. 344; Pigman v. State, 14 Ohio, 555, 45 Am. Dec. 558; People v. Ferris, 55 Cal. 588; People v. Harris, 29 Cal. 678; People v. Batting, 49 How. Pr. 392; Flanigan v. People, 86 N. Y. 554, 40 Am. Rep. 556. If defendant, at the time of committing the act, was in a state of mental confusion, of which drink was the cause, the jury will consider the same as evidence tending to show that there was no specific intent to take life, or that there was no positive premeditation. Whart. & S. Medical Jurisprudence, § 70, note s.; Whart. Hom. 371.

A refusal to charge on a trial for murder, that intoxication absolutely tends to show absence of premeditation and deliberation is not error. People v. Mills, 98 N. Y. 176.

§ 278. Legal Significance of the Term "Motive."-The law recognizes the principle that men are impelled to commit crimes from some motive. There are, indeed, few motiveless crimes, and among the motives impelling men to crime is that of gain. In a thoughtful and philosophical treatise it is said: "As there must pre-exist a motive to every voluntary action of a rational being, it is proper to comprise in the class of moral indications such particulars of external relation as are usually observed to operate as inducements to commission of crime" and among the motives that influence human conduct this author classes that of gain. Wills, Circ. Ev. 39.

Another author says: "In looking at the motives which instigate human conduct, we ascend to the very origin of crime." Burrill, Circ. Ev. 281. At another place this author says: "The motive of gain, in the stricter sense of the term, may be excited by two different classes of objects, first, by something visible and

tangible, which the party meditating the crime desires to possess; and, secondly, by some substantial benefit which is expected to accrue as the result of the contemplated act." Burrill, Circ. Ev. 285.

The case of State v. Cohn, 9 Nev. 179, supplies an illustration of the practical application of these principles. In that case the appellant was charged with arson, and it was held that evidence of over-large insurance upon his goods was competent "to show a possible or probable motive, such motive being a material link in the chain of circumstances." In the course of the opinion in that case it was said: "Now, it is not a natural thing for a man to fire his own premises; presumptively appellant was innocent. What then is the logical and natural course of human thought at such a juncture? Is it not to inquire what motive, if any, existed which could have influenced a sane person to do such an act? Such was the course pursued by the prosecution, the motive was sought, and by it claimed to be found in the fact of an undue insurance; not only a perfectly proper proceeding, but indeed the only one open." The same principle is declared in Com. v. Hudson, 97 Mass. 565, and in Shepherd v. People, 19 N. Y. 537. In this last case Denio, J., speaking for the court, said: "The prisoner's house had been burned and he was charged, upon circumstantial evidence, with having set it on fire. Prima facie he had no motive for the act, but a strong pecuniary one against it. But if he had a contract of indemnity, and especially if under it he might probably obtain more than the value of the property, the case would be quite different."

Mr. Bishop says: "Evidence that the insurance was for more than the worth of the building is pertinent; also, that the defendant attempted to procure payment of what was thus excessive." 2 Bishop, Crim. Proc. § 50. These cases are in harmony with the general rule which that author thus states: "Hence proof of motive is never indispensable to a conviction. But it is always competent against the defendant." 1 Bishop, Crim. Proc. § 1107; Wills, Circ. Ev. 41; Goodwin v. State, 96 Ind. 550, 560.

While it is competent to prove facts tending to show an evil motive, yet such facts are always susceptible of explanation. Motive is but a circumstance, and it is always proper to explain the act which is adduced as evidence of a wicked motive.

§ 279. Term "Motive" Defined.-"Motive is an inducement,

or that which leads or tempts the mind to indulge the criminal act. It is resorted to as a means of arriving at an ultimate fact, not for the purpose of explaining the reason of a criminal act, which has been clearly proved, but from the important aid it may render in completing the proof of the commission of the act when it might otherwise remain in doubt. With motives, in any speculative sense, neither the law nor the tribunal which administers it, has any concern. It is in cases of proof by circumstantial evidence that the motive often becomes not only material, but controlling, and in such cases the fact from which it may be inferred must be proved. It cannot be imagined any more than any other circumstance in the case." Church, Ch. J., in People v. Bennett, 49 N. Y. 137.

In criminal prosecutions it is always competent for the state's attorney to show that the motive for the offense was the hope of gain. Kennedy v. People, 39 N. Y. 245.

§ 280. Collateral Facts in Relation to Motive.-"Evidence of collateral facts which may appear to have presented a motive for a particular action deserves per se no weight. With motives merely the legislator and the magistrate have nothing to do; actions, as the objects or results of motives, are the only legitimately cognizable subjects of human law. Actus non facit reum nisi mens sit rea is a maxim of reason and justice not less than of positive law. Motives and their objects differ, it has been remarked, as the springs and wheels of a watch differ from the pointing of the hour, being mutually related in like manner. But such evidence is most pertinent and important when clearly connected with declarations which demonstrate that the particular motive has passed into action, or with inculpatory moral facts which it tends to explain and co-ordinate, and which would otherwise be inexplicable." Wills, Circ. Ev. 42.

"On a late trial for murder, Lord Chief Justice Campbell thus summed up the doctrine under discussion: 'With respect to the alleged motive, it is of great importance to see whether there was a motive for committing such a crime, or whether there was not; or whether there is an improbability of its having been committed, so strong as not to be empowered by positive evidence. But if there be any motive which can be assigned, I am bound to tell you that the adequacy of that motive is of little importance. We know, from the experience of criminal courts, that atrocious

crimes of this sort have been committed from very slight motives; not merely from malice and revenge, but to gain a small pecuniary advantage, and to drive off for a time pressing difficulties."" Wills, Circ. Ev. 44.

§ 281. Any Proof Suggesting Motive is Relevant.-Proof tending to show that the deceased had money, suggests a motive for committing a robbery, and so a motive to take the life of the deceased, if that would facilitate the theft, or contribute to its concealment. Such a fact formed a prominent circumstance, tending to the conviction of the prisoner, in Gordon v. People, 33 N. Y. 501, and was not suggested as of doubtful admissibility in that case, and the court, in Hendrickson v. People, 10 N. Y. 13, went much further in sustaining the admission of evidence, tending, as was claimed, to show a motive for the commission of the crime charged, by receiving the testimony, which, at most, only showed that the prisoner had a diminished interest in the continuance of his wife's life. It is always a just argument, on behalf of one accused, that there is no apparent motive to the perpetration of the crime. Men do not act wholly without motive. On the other hand, proof of motive tends, in some degree, to render the act so far probable as to weaken presumptions of innocence, and corroborate evidence of guilt.

§ 282. What is Implied by the Term "Premeditation."— Premeditation implies beforehand, or previous deliberation, and while all this must transpire before the fatal act, by some appreciable space of time, yet no particular length of time is required. If there be time for choice as the result of reflection that is sufficient. The mental processes are so swift that premeditation may be found to exist within the very shortest time. United States v. King, 34 Fed. Rep. 302.

Premeditation differs essentially from will, which constitutes crime, because it supposes, besides an actual will, a deliberation and a continued persistence which indicates mere perversity. Bouvier, Law Dict. title Premeditation.

Willful, deliberate and premeditated, are merely cumulative and expressive of the same idea (People v. Pool, 27 Cal. 572. See McDaniel v. State, 8 Smedes & M. 401, 47 Am. Dec. 93), and standing in the relation to the offense of murder is a conclusion of law drawn from certain facts. People v. Jacinto Aro, 6 Cal. 207; State v. Crozier, 12 Nev. 300; Judge v. State, 58 Ala.