as to whether the offense was complete on penetration only, or only upon emission; but it was finally settled that penetration only was sufficient. The violation of the woman is complete without more, which would seem to have been reason enough to settle the point; but the judges seem to have been influenced also by the difficulty of proof. The slightest penetration is sufficient. If the woman gave up opposition afterwards or even forgave the offense, that would not be a defense.

§ 90. Who can be violated. The crime may be committed on one who has been guilty of previous voluntary intercourse with the defendant, or even though she be a common strumpet; for it would be monstrous that one who had once fallen could not reform, and that one who had yielded her virtue should therefore be subject to violation against her will and with impunity.

§ 91. Proof of rape. Sir Matthew Hale said: "It is true that rape is a most detestable crime, and therefore ought severely and impartially to be punished with death; but it must be remembered that it is an accusation easy to make, hard to be proved, but harder to be defended by the party accused, though innocent." (1 Hale P. C. 635.) He then mentioned two extraordinary cases that occurred in his own observation, of malicious prosecutions of innocent persons for rape; and he cautions judge and jury not to be too hastily carried away with indignation at the accused and sympathy for the prosecutor, but to listen dispassionately to the testimony. The party ravished is a competent witness, though her husband be among those accused; but her testimony ought always

to be weighed by the circumstances, her former repute, her conduct about the time and after, her opportunity to have called assistance when assaulted, whether she made outcry, how soon she made complaint afterwards, whether her relations with the accused were intimate before, or there were occasion for spite or jealousy afterwards; and, in fact, all the circumstances of the case should be carefully weighed.

SECTION 8. HOMICIDE.

§ 92. 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 considered in § 60 to § 66 inclusive, above); and (2) felonious. Felonious homicide is homicide without justification or excuse, in which death results within a year and a day after the injury, and is either (1) murder, or (2) manslaughter. Manslaughter is either (a) voluntary, or (b) involuntary. If death does not result within a year and a day the law presumes that it resulted from some other cause than the injury inflicted.

§ 93. 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 a murder. It is spoken of as a state of mind depraved, devoid of the sense of social duty, and fatally bent on evil. The reader will compre

hend its nature, perhaps, by an enumeration of the principal classes of cases in which the killing has been held to be with malice aforethought and therefore the crime murder. At the common law there were no degrees of murder, but by statutes, which differ somewhat in the several states, it has been declared to be murder in the first degree to kill another deliberately and premeditatedly as, (1) 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. The other common law murders are often declared by statute to be murder in the second or in the third degree, and are as follows: (3) by any act dangerous in itself and showing a reckless disregard of human life and safety, as with a deadly weapon; (4) unintentionally resulting from an attempt to commit another felony; and, (5) unintentionally resulting from unlawfully opposing an officer or other person engaged in arresting or keeping custody of a prisoner. The malice which is manifested by an actual intention to kill is known as express malice. Where the death results accidentally as in the last three cases above named, the malice is considered as implied in law. The cases of express malice are too clear to warrant further discussion, but it will be instructive to consider the cases of implied malice separately.

$94. Reckless murder. Where the death was not intended but the conduct of the accused is such as to show that he had no such regard for human life as a person without malice would have, his act is punished as murder. Of this class of murders an old case will furnish

a good illustration. On 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, Grey 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. All the judges were 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 ensues, the law will judge it of malice prepense (2).

§ 95. Murder in opposing an officer. 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

(2) Grey's Case, Kelyng 64.

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 that might ensue by a breach of it; and, therefore the law will adjudge it murder, and that the murderer had malice prepense, because he set himself against the officers of the law. So if the sheriff or any of his bailiffs or other officer is killed in executing the process of the law, or in doing their duty, it is murder; the same is the law if a watchman is killed in executing his office.

§ 96. Murder of the peacemaker. If a private citizen endeavor to resore the peace by separating persons who are fighting, and he notifies them in advance that he comes not to enter the fight but to stop it, and if either of them turn upon him and kill him, this is murder, whether they intended to kill or not, for he is considered as in the shoes of the peace officer for the purpose. But if he does not notify them of his purpose and they kill him, it is not murder; for they might well assume that he came to enter the fight.

§ 97. Accidental murder in an attempted felony. If death results from a wrong done which does not amount to a felony it is not murder unless the defendant was guilty of such negligence as manifests a depraved mind and a reckless desregard for human life. But if a person designs to commit a felony, and, in attempting to execute this design, death of any person results, he is liable for murder, it has been said, though he did no act