MURDER (ante). The common law inferred a wrongful intent from the mere fact of the killing, so that the burden lays upon the defendant of establishing his innocence of malice. Under the definition " with malice aforethought, express or implied," many kinds of homicide which are now considered to involve a much smaller degree of guilt, were classed under the one head of murder. By the common law it was murder to secnre by perjury the conviction of an innocent person upon a capital charge; but at the present day such a crime would be considered only as a perjury which should receive an aggravated punishment. At the common law, too, the procuring of a person to com mit suicide was murder if the suicide was accomplished. So it is said in the books that if two persons agree to commit suicide, and attempt to carry their design into execution, but only one dies, the survivor is guilty of murder if he were present at the commission of the.suieffle; otherwise he is an accessory before the fact. Both of the above-men tioned cases would probably now be considered as simple manslaughter. According to Hale in his Pleas of the Crown, if a person by tffleats or otherwise cause the death of another by putting him into "4 passion of grief or fear," the former is guilty iieither of manslaughter or murder; and such is, probably,. still th4 law, though it has been.
doubted. If a number of persons conspire to commit an unlawful act, in the execution of which murder is committed, they all are guilty of murder. The only compulsion which can excuse a murder must be an irresistible violence, such as would put a man of discretion and courage into fear for life or limb. There has been considerable contro versy as to the burden of proof in cases of murder, and it has sometimes been held that, after the prosecution has shown that the death set out in the indictment was caused by the prisoner, the burden of proof then rests upon him to show justification or want of malice. The evidence relied upon may of course be either direct or circumstantial. In most of the states murder is divided into degrees, and only murder in the first degree is punished capitally. Murder committed deliberately with express malice aforeihought, and murder committed, to use the words of the .friasstiehusetts statute, `` in perpetrating or attempting to perpetrate, any crime punishable with death, or imprisonment for life," is murder in the first degree; all other murder is in the second degree. '1'lle special classes of crime, outside of deliberate premeditated killing, which will constitute murdei in the first degree, vary somewhat according to the statutes of each state.