CHAPTER XXIX. GAME LAWS. [Penal Code, secs. 626-637.] It is within the police power of the state, for the protection of the wild game of the state, to prohibit the sale of meat of any wild game within the stateder such a law it is not material whether the game was killed/ON, the state, if it is sold within.1 A justice court has no diction of violations of the conferred exclusively on the game law." Jurisdiction is FORM-KILLING AND POSSESSING GAME. Between the 1st day of March and the 1st day of October of the year 190, unlawfully and wilfully did hunt, pursue, take, kill, destroy, and have in his possession ten valley quail [or other bird, naming it]. FORM-DESTROYING EGGS OR NESTS. Unlawfully and wilfully did take, gather and destroy the eggs and nest of quail [or other bird or fowl, naming it]. FORM-KILLING PROHIBITED BIRDS. Unlawfully and wilfully did hunt, shoot at, shoot, take, kill and destroy an English skylark [or other bird, naming it]. FORM-POSSESSING PROHIBITED BIRDS. Unlawfully and wilfully did buy [or sell, give away of have in possession, as the case may be] an English skylark [or other bird, naming it] the same not then and there. 1 Ex parte Maier, 103 Cal. 476. 2 Ex parte Anear, 114 Cal. 370. being sold [or bought or given away or had in possession, as the case may be] for the purpose of propagation, or for any educational or scientific purpose. FORM-POSSESSING OR SELLING GAME. Being then and there a person keeping a cold storage warehouse, [or tavern, hotel-keeper, restaurant, eating house keeper, or market man, as the case may be] unlawfully and wilfully did buy [or sell, expose, offer for sale, give away or have in his possession, as the case may be] ten quail [or other bird or animal, naming it] between the day of Wilfully and unlawfully did use a shotgun of larger calibre than that commonly known and designated as a No. 10 gauge. to wit, a No. gauge, for the purpose of killing game.* FORM-DYNAMITING FISH. That the said A B on or about the day of 190—, at and in the county and state aforesaid, wilfully and unlawfully did place and cause to be placed in stream, the same being then and there of the waters of the state of California, and in the county of in said state, certain dynamite and gunpowder and other explosive compound for the purpose then and there of wilfully and unlawfully killing and taking fish therein and therefrom, and did then and there wilfully and unlawfully take and procure and kill and destroy fish therein by means of said explosives.5 GRAND LARCENY, see LARCENY. HIGHWAY ROBBERY, see ROBBERY. 4 Ex parte Peterson, 119 Cal. 578. 5 People v. Beach, 122 Cal. 37. CHAPTER XXX. HOMICIDE. DEFINITION. Homicide is the taking of human life, under circumstances from which the law implies either guilt or inno cence. CAUSES CONTRIBUTING TO DEATH. Whether the criminal act preceding death amounts in law to a homicide, depends frequently upon supervening circumstances, over which the party inflicting the injury has no control whatever, like the unskilfulness of the treatment, or the suicide or unruly conduct of the patient. The rule may be stated thus: If the harm inflicted is not of itself necessarily mortal, whether the death which follows be a homicide or not, depends upon whether the treatment or other supervening circumstances caused the death or merely contributed to it. If death was caused solely by such supervening circumstances, it is not homicide, otherwise it is. But if the harm done was sufficient in itself to cause the death and did cause it, no intervening cause will relieve the party inflicting it from the responsibility of homicide. It is a homicide, too, though not necessarily felonious, to accelerate or hasten the death of a person languishing from either a mortal disease or a mortal wound.2 Homicide is felonious, justifiable or excusable. Felonious homicide is either murder or manslaughter. But in order to constitute a felonious killing, that is, either murder or manslaughter, the injury inflicted must result in death 1 People v. Lewis, 124 Cal. 556. 2 People v. Lewis, supra; People v. Ah Fat, 48 Cal. 61; People v. Moon, 65 Cal. 532. within a year and a day from the date of its commission, otherwise death is conclusively presumed to result from natural causes.2a MURDER. DEFINITION. Murder is the unlawful killing of a human being, with malice aforethought, either express or implied.3 ESSENTIALS. To constitute the offense it must appear that the accused was of sound mind, that the killing was unlawful, and that it was done with malice. To say that the person killing must be of sound mind is simply a repetition of a rule applicable to all crimes. The law presumes every person to be of sound mind until the contrary be made clearly to appear." UNLAWFUL KILLING. Every killing is unlawful unless expressly excused or justified by law. But an unlawful killing may be either murder or manslaughter. The homicide being shown, it is incumbent on the defendant to prove circumstances in mitigation, excuse or justification unless they arise out of the evidence produced against him. The mere fact of the killing being proved to have been done by the defendant, and nothing further, the presumption of law is that it was malicious and an act of murder. 2a People v. Steventon, 9 Cal. 273. 3 People v. Haun, 44 Cal. 96; People v. Foren, 25 Cal. 364; People v. Doyell, 48 Cal. 85. This is but an enunciation of the common law definition, given by Coke, which describes murder as "where a person of sound memory and discretion unlawfully killeth any reasonable creature in being, and under the King's peace, with malice aforethough, either express or implied." 3 Inst. 47. 4 People v. Moore, 8 Cal. 93. 5 People v. Myers, 20 Cal. 518; People v. Coffman, 24 Cal. 236; People v. Ferris, 55 Cal. 594. 6 People v. March, 6 Cal. 541; People v. Bush, 71 Cal. 601; People v. Knapp, 71 Cal. 1; People v. Barry, 31 Cal. 357; People v. Miligate, 5 Cal. 127; People v. Roberts, 6 Cal. 217; People v. Langton, 67 Cal. 427; People v. Ah Gee Yung, 86 Cal. 144. Malice imports a wish to vex, annoy or injure another person, or an intent to do an unlawful act, established either by proof or presumption of law. It may be either 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." MALICE INFERRED. It seems to result from the cases that if there be only slight or no provocation and if it reasonably may be inferred from the circumstances of the case, that the party intended to kill or do some great bodily harm, such homicide will be murder. Thus, where a feeble old man is assaulted by a powerful young man without any provocation, and beaten upon the head in a cruel and unusual manner so that he dies, it shows an abandoned and malignant heart and is murder, though there was no evidence as to character of the weapon used." It will be seen that in express malice there must be a specific intent to kill, disclosed by the facts of the case, as where the killing is by means of poison, lying in wait, or where antecedant menaces or concerted plans and the like are proven. In such cases there is manifestly a deliberate design to kill and malice is express. But the law will imply malice when no considerable provocation appears. Actual intent to kill is not necessary to establish malice, for murder, even of the first degree may be committed in the perpetration of another felony when there is no design whatever to kill,11 and the actual intent to kill 10 7 People v. Kerraghan, 72 Cal. 609; People v. Dice, 120 Cal. 201. 8 People v. Iams, 57 Cal. 116; People v. Bruggy, 93 Cal. 476; People v. Dice, 120 Cal. 189; People v. Bealoba, 17 Cal. 389; People v. Sanchez, 24 Cal. 17; People v. Foren, 25 Cal. 361; People v. Doyell, 48 Cal. 96; People v. Evans, 124 Cal. 209. 9 People v. Goslaw, 73 Cal. 323. 10 People v. Knapp, 71 Cal. 17. 11 People v. Foren, 25 Cal. 365; People v. Craig, 111 Cal. 460; People v. Olsen, 80 Cal. 126; People v. Doyell, 48 Cal. 94. |