of a particular duty, kills a person who resists or prevents him from executing it. In case of a riot which an officer is ordered to quell, both he and his subordinates, assisting in dispersing the rioters, are justified in killing them at common law, if it cannot be otherwise suppressed. (3) Where the homicide is committed in prevention of a forcible and atrocious crime; as, for instance, where the deceased was in the act of robbing or murdering another.1 Excusable homicide is of two kinds : (1) Homicide by misadventure. Example, where a man doing a lawful act, without any intention to hurt, by accident kills another; as for instance, where a soldier firing at a target undesignedly kills a person. But in this case it would have to be shown that proper precautions had been taken in choosing a site for the target. (2) Homicide in self-defense, upon a sudden affray. This is excusable rather than justifiable. It is frequently difficult to distinguish this species of homicide from manslaughter, in the proper legal sense of the word; but the true criterion seems to be this; where both parties are actually combating at the time when the mortal stroke is given, the slayer is then guilty of man-slaughter; but if the slayer has not begun the fight, or having begun endeavors to decline any further struggle, and afterwards, being closely pressed by his antagonist, kills him to avoid his own destruction, this is homicide excusable by selfdefense. For which reason the law requires, that the person who kills another in his own defense should have retreated as far as he conveniently or safely can, to avoid the violence of the assault, before he turns upon his assailant; and that not factitiously, or in order to watch his 1 Wharton, SS 936-938. opportunity, but from a real tenderness of shedding his brother's blood.1 Felonious homicide is the killing a human creature without justification or excuse. This includes murder, manslaughter, and suicide. Murder is where a person of sound memory and discretion unlawfully kills any reasonable creature in being, and in the peace of the commonwealth, with malice prepense or aforethought, either express or implied.2 The following things are requisite in murder: (1) It must be committed by a person of sound memory and discretion. Lunatics and children are held incapable of committing any crime, unless in such cases where they show a consciousness of doing wrong, and of course a discretion or discernment between good and bad. (2) There must be an unlawful killing. The unlawfulness arises from the killing without warrant or excuse; and there must also be an actual killing to constitute murder; for a bare assault, with intent to kill, is only a great misdemeanor. The killing may be by any means by which human nature may be over come. In order to make the killing murder it is requisite that the party die within a year and a day after the stroke received, or cause of death administered; in the computation of which the whole day upon which the hurt was done shall be reckoned the first.3 (3) The person killed must be a reasonable creature in being. To kill a child in its mother's womb is not murder; and to constitute a birth so as to make the killing of a child murder, the whole body must be detached from that of the 2 Wharton, § 930. 1 4 Blackstone, §§ 184-185. mother; but if it has come wholly forth, but is still connected by the umbilical cord, such killing will be murder.1 (4) The person killed must be in the peace of the commonwealth. It is not murder to kill an enemy in time. of war; but killing even an alien enemy within the kingdom, unless in the actual exercise of war, would be murder.2 (5) The killing must be done with malice aforethought. Malice is the great test between murder and other kinds of homicide. This malice may be either express or implied. Express malice is when one, with a sedate deliberate mind and formed design, doth kill another; which formed design is evidenced by external circumstances discovering that inward intention; as lying in wait, antecedent menaces, former grudges, and concerted schemes to do him some bodily harm. This takes in the case of deliberate duelling, where both parties meet avowedly with an intent to murder. Implied. Where no malice is expressed, the law often implies it. Where a man willfully poisons another, in such a deliberate act the law presumes malice, though no particular enmity can be proved. So, if a man kill another suddenly, without any, or without a considerable provocation; if he kill an officer of justice in the legal execution of his duty; if an instrument likely to kill be used; if, intending to do another felony, he undesignedly kills another man; in all these cases malice is implied.3 Manslaughter is the unlawful and felonious killing of another, without any malice, either express or implied. The distinction between manslaughter and murder consists in the following: In the former, though the act which occasions the death be unlawful, or likely to be 3 Wharton, § 947. 1 Bouvier's Law Dictionary. 1 Hale, P. C. 433. attended with bodily mischief, yet the malice, either express or implied, which is the very essence of murder, is presumed to be wanting in manslaughter.1 tary. Manslaughter is of two kinds, voluntary and involun Voluntary manslaughter is the unlawful killing of another, without malice, in sudden quarrel or in heat of passion. If upon a sudden quarrel two persons fight, and one of them kills the other, this is manslaughter; and so it is if they, upon such an occasion, go out and fight in a field; for this is one continued act of passion; and the law pays that regard to human frailty, as not to put a hasty and a deliberate act upon the same footing with regard to guilt. So. also if a man be greatly provoked, as by pulling his nose, or other great indignity, and immediately kills the aggressor, though this is not excusable se defendo, since there is no absolute necessity for doing it to preserve himself; yet neither is it murder, for there is no previous malice; but it is manslaughter. Involuntary manslaughter is where a man doing an unlawful act, not amounting to felony, by accident kills another. It differs from homicide excusable by misadventure in this, that misadventure always happens in consequence of a lawful act; but this species of manslaughter in consequence of an unlawful act. If a person does an act, lawful in itself, but in an unlawful manner, and without due caution and circumspection, this will be either misadventure, manslaughter, or murder, according to the circumstances under which the original act was done; as when a workman flings down a stone or piece of timber into the street, and kills a man; if it were in a country village, where few passengers are, 1 1 East P. C. 218. or any authorized depository, or for any purpose not prescribed by law transfers or applies any portion of the public money entrusted to him, is, in every such act, deemed guilty of embezzlement of the money so deposited, converted, loaned, withdrawn, transferred, or applied.1 (2) Every officer or other person, charged by an act of Congress with the safe keeping of the public moneys, who fails to safely keep the same, without loaning, using, converting to his own use, depositing in banks, or exchanging for other funds than as specially allowed by law, shall be guilty of embezzlement of the money so loaned, used, converted, deposited, or exchanged." (3) Every officer or agent of the United States who, having received public money which he is not authorized to retain as salary, pay or emolument, fails to render his accounts for the same, as provided by law, shall be deemed guilty of embezzlement.3 (4) Every person who, having moneys of the United States in his hands or possession, fails to make deposit of the same with the Treasurer, or some Assistant Treasurer, or some public depository of the United States, when required to do so by the Secretary of the Treasury, or the head of any proper department, or by the accounting officer of the treasury, shall be deemed guilty of embezzlement thereof. (5) Every officer, charged with the payment of any of the appropriations made by any act of Congress, who pays to any clerk, or any employé of the United States, a sum less than that provided by law, and requires such employé to receipt, or give a voucher for an amount greater than that actually paid to and received by him, is guilty of embezzlement.5 1 5488, Revised Statutes. 3 Ibid., § 5491. 4 Ibid., § 5492. * Ibid., § 5490. * Ibid., § 5483. |