MURDER. The wilful killing of any sub ject whatever, with malice aforethought, whether the person slain shall be an Eng lishman or a foreigner. Hawk. Pl. C. b. 1, c. 13, s. 3. The killing of any person under the king's peace, with malice prepense or aforethought, either express, or implied by law. 1 Russ. Cr. 421 ; Com. v. Webster, 5 Cush. (Mass.) 304, 52 Am. Dec. 711; Archb. Cr. Pr. & Pl. 727 note ; Whart. Cr. L. 303. When a person of sound mind and discretion unlawfully killeth any reasonable creature in being, and under the king's peace, with malice aforethought, either express or im plied. Co. 3d Inst. 47.
The latter definition, which has been adopted by Blackstone, 4 Cora. 195 ; 2 Chitty, Cr. Law, 724, and others, has been severely criticised. What, it has been asked, are sound mind and discretion? What has soundness of memory to do with the act? be it ever so Imperfect, how does it effect the guilt? If discretion is necessary, can the crime ever be com mitted? for is it not the highest indiscretion in a man to take the life of another, and thereby expose his own? If the person killed be an idiot or a new born infant, is he a reasonable creature? Who is in the king's peace? What is malice aforethought? Can there be malice aforethought? Livingston, Pen. Law, 186. It is, however, apparent that some of the criticisms are merely verbal, and others are answered by the construction given in the various cases to the requirements of the definition. See, es pecially, Com. v. Webster, 5 Cush. Mass. 304, 52 Am. Dec. 711.
According to Coke's definition, there must be, first, sound mind and memory in the agent. By this is understood there must be a will and legal discretion. Second, an ac tual killing ; but it is not necessary that it should be caused by direct violence ; it is sufficient if the acts done apparently endan ger life, and eventually prove fatal ; Hawk. Pl. Cr. b. 1, c. 31, s. 4; 1 Hale, Pl. Cr. 431; 9 C. & P. 356. Third, the party killed must have been a reasonable being, alive in the king's peace. To constitute a birth, so as to make the killing of a child murder, the whole body must be detached from that of the mother ; put if it has come fully forth, but IS still connected by the umbilical cord, such killing will be murder ; 2 Bouvier, Inst. n. 1722, note. Foeticide would not be such a killing ; he must have been in rerum nature. Fourth, malice, either express or implied.
It is this circumstance which distinguishes murder from every description of homicide ; Smith v. State, 83 Ala. 26, 3 South. 551. See MAracn.
Murder may be committed as the result of some illegal act, whether the design to take life is actually present or not ; State v. Alex ander, 30 S. C. 74, 8 S. E. 440, 14 Am. St. Rep. 879. Wilful omission of duty resulting in death is murder, where the exposure or neglect clearly shows danger to life ; Terri tory v. Manton, 8 Mont. 95, 19 Pac. 387. It being contrary to the law of the land to com mit suicide, if two persons meet together and agree so to do, and one of them dies, the other is guilty of murder ; 10 Crim. L. Mag. 862. One who fires with deliberate purpose of killing A., and kills B., is as guilty as if he had killed A. ; Com. v. Breyessee, .160 Pa. 451, 28 Atl. 824, 40 Am. St. Rep. 729 ; State v. Gilman, 69 Me. 163, 31 Am. Rep. 257; State v. Dugan, Houst. Cr. Cas. (Del.) 563; but see People v. Gordon, 100 Mich. 518, 59 N. W. 322 ; obstructing a railroad track, by which a human being is killed, is murder in the first degree ; Presley v. State, 59 Ala. 98.
In some of the states, by legislative enact ments, murder has been divided into degrees. In Pennsylvania, by the act of April 22, 1794, "all murder which shall be perpetrated by means of poison, or by lying in wait, or by any other kind of wilful, deliberate, and pre meditated killing, or which shall be commit ted in the perpetration or attempt to perpe trate 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 mur der shall be tried shall, if they find the per son guilty thereof, ascertain in their verdict whether it be murder of the first or second degree ; but if such person shall be convicted by confession, the court shall proceed, by examination of witnesses, to determine the degree of the crime, and give sentence ac cordingly." Similar enactments have been made in many other states; Fahnestock v. State, 23 Ind. 231; State v. Pike, 49 N. H. 399, 6 Am. Rep. 533 ; Territory v. Rowand, 8 Mont. 110, 19 Pac. 595; State v. Woods, 97 Mo. 31, 10 S. W. 157; State v. Smith, 73 Ia. 32, 34 N. W. 597; Trumble v. State, 25 Tex. App. 631, 8 S. W. 814; Marshall v. State, 32 Fla. 462, 14 South. 92 ; McDaniel v. Cora., 77 Va. 284.