MALICE.
3. In some of the states, by legislative en actments, murder has been divided into de grees. In Pennsylvania, the act of April 22, 1794, 3 Smith, Laws, 186, makes "all murder which shall be perpetrated by means of poi son, or by lying in wait, or by any other kind of wilful, deliberate, and premeditated kill ing, or which shall be committed in the per petration or attempt to perpetrate any arson, rape, robbery, or burglary, shall be deemed murder of the first degree ; and all other kinds of murder shall be deemed murder of the second degree ; and the jury before whom any person indicted for murder shall be tried shalt, if they find the person guilty thereof, ascertain in their verdict whether it be mur der of the first or second degree ; but if such person shall be convicted by confession, the court shall proceed, by examination of wit nesses, to determine the degree of the crime, and give sentence accordingly." Many deci
sions have been made under this act, to which the reader is referred. See Wharton, Crim. Law.
Similar enactments have been made in Massachusetts, Tennessee, and Virginia. 3 Yerg. Tenn. 283 ; 5 id. 340 ; 6 Rand. Va. 721. See, generally, Bishop, Gabbett, Russell, Wharton, Crim. Law ; Roscoe, Crim. Ev. ; Archbold, Crim. Pract. ; Hawkins, Hale, Pleas of the Crown.
In Pleading. In an indictment for mur der, it must be charged that the prisoner " did kill and murder" the deceased ; and un less the word murder be introduced into the charge, the indictment will be taken to charge manslaughter only. Foster, Crim. Law, 424; Yelv. 205 ; 1 Chitty, Crim. Law, *243, and the authorities and cases there cited.