felony has actually been committed, and the felon cannot be arrested, by the officer or private person in pursuit, except by killing him; (4) Where an officer is commanded by a warrant to arrest a certain person as a felon, and necessarily kills him in effecting such arrest. The law excuses the killing of another: (1) Where a man doing a lawful act, with reasonable care and without intention of bodily harm to any one, accidentally or by chance causes the death of another; (2) Where a man, who is without fault himself, being assaulted by another under such circumstances as to induce in his mind a reasonable belief that the assailant intends to take his life or do him serious bodily harm, and that this intention is likely to be accomplished, flees as far as he can, and seeing no other way of escape, kills his assailant. Read 4 Bl. Comm., pp. 178-188. Broom Comm., pp. 931, 932. 1 H. P. C., pp. 418, 478–502. 1 Arch. Cr. Pr., pp. 763-805. 2 Whart. C. L., §§ 934-938, 1019-1042. 1 Bish. C. L., §§ 836-877. 2 Bish. C. L., §§ 619-622, 642–655. 3 Greenleaf Ev., §§ 115-118. § 410. Of Murder. Malice Express or Implied. Degrees. Malice, in murder, is the intention to kill unlawfully; and if it exists for any period, however brief, before the killing and at the instant thereof, it is malice aforethought. Malice may be either express or implied. Malice is express when the act of killing is the result of a deliberate and premeditated design, evidenced by such external circumstances as lying in wait, antecedent menaces, or concerted schemes to do the person slain some bodily harm. Malice is implied whenever the act producing death is of peculiar cruelty or wantonness, or is without provocation, or is, in itself, either a felony or calculated to do serious bodily harm, or consists in the use of dangerous weapons or poisons, or is committed under circumstances denoting a depraved inclination to mischief. But malice does not necessarily include hatred or ill-will toward the person killed, nor is it necessary that the death produced should be the death primarily intended by the slayer. An attempt to kill one person, resulting in the actual death of another, implies malice toward that other, and a wanton act, endangering the lives of persons in general, involves malice toward all those who are killed thereby. In many of the States, the crime of murder is divided into different degrees, which are distinguished from each other by the malice that accompanies the act. Murder in the first degree is generally murder with express malice, or from premeditated design; murder in the second degree either embracing all other murder, or such other as is characterized by the grosser forms of implied malice. Read 4 Bl. Comm., pp. 198-201. 1 H. P. C., pp. 451-466. 3 Chitty C. L., pp. 727–730. 1 Russ. Cr., pp. 482-484, 532–538. 1 Arch. Cr. Pr., pp. 751-755, 844-877, 896-898. 2 Whart. C. L., §§ 944-968, 997, 1075-1114. 2 Bish. C. L., §§ 675–696, 723–729. 2 Bish. C. P., §§ 566-587. 3 Greenleaf Ev., §§ 144-148. § 411. Of the Presumption of Malice from the Unlaw ful Killing. In all cases of homicide the law presumes the act to be murder, and throws upon the actor the burden of showing, if he can, that he acted lawfully, or without malice. The presumption of unlawfulness may be rebutted by proving either of the states of fact, already mentioned as rendering the act of killing justifiable or excusable. The presumption of malice may be rebutted by showing that the killing was lawful, or that the actor was incapable of criminal intent, or that he acted under compulsion or mistake of fact, or that he acted in hot blood and without previous intent to kill. Read 4 Bl. Comm., p. 201. Broom Comm., pp. 920, 921. 3 Chitty C. L., p. 730. 1 B. & H. L. C. C., pp. 322-362. § 412. Of Manslaughter. Manslaughter is the unlawful killing of another, without malice aforethought.) Manslaughter includes every unlawful killing which is not murder. The distinction between these two crimes is only in regard to malice aforethought, which in murder is always present, and in manslaughter is always absent; and the same rules which govern one, in reference to the person killing, the person killed, the act of killing, and the unlawfulness of the act, govern the other also. Read 4 Bl. Comm., pp. 191, 201. 1 Russ. Cr., p. 579. 1 Arch. Cr. Pr., pp. 806, 807. 2 Whart. C. L., § 931. 2 Bish. C. L., §§ 623-628, 672-678, 720. 3 Greenleaf Ev., § 119. § 413. Of Voluntary Manslaughter. Manslaughter is either voluntary or involuntary. Voluntary manslaughter is an unlawful killing, upon immediate provocation or in a sudden combat. No provocation will justify or excuse a homicide. If the provocation be slight, as by words or gestures, or by a mere trespass upon property, the killing will be murder, unless the circumstances, which attend it, denote that there was no intention to do serious bodily harm, in which case the killing will be manslaughter. Where the provocation is great, (as if the slayer find the person slain in adulterous connection with his wife,) and, in the heat of blood engendered by such provocation, the killing is committed, it is manslaughter. But whatever be the provocation, if it be sought by the slayer, the killing will be murder. Read 4 Bl. Comm., pp. 191, 200, 201. 1 Russ. Cr., pp. 513-527, 580-585. 1 Arch. Cr. Pr., pp. 807-820. 2 Whart. C. L., §§ 931, 932, 969-986. 2 Bish. C. L., §§ 697-718. 3 Greenleaf Ev., §§ 121-127. § 414. Of Killing in Actual Combat. Where, upon any provocation, actual combat ensues, and in such combat, and before the passions have had time to cool, one of the combatants, without previous ill-will and without any act of treachery, kills the other, it is manslaughter. But if, from the outset, the acts or words of the slayer indicate an intent to kill the other, or if he takes the person slain at an unfair advantage, it is murder. Read 4 Bl. Comm., pp. 191, 192. 3 Chitty C. L., pp. 730-732. § 415. Of Involuntary Manslaughter. Involuntary manslaughter is an unlawful killing, which results from the careless doing of some lawful act, or from the doing of some unlawful act, which is less than felony, and is not calculated to produce serious bodily harm. The doing of a lawful act with gross and wanton carelessness, and thereby causing death, is murder. The doing of such act with carelessness not wanton or malicious, with the same result, is manslaughter. When death results from a mere misdemeanor or from a trespass, and the act done was not, in its own nature, or from the operation of surrounding circumstances, likely to result in death or serious injury, it is manslaughter. But death produced by even a misdemeanor, which of its own nature is dangerous to life, is murder. Read 4 Bl. Comm., pp. 192-194. 1 Russ. Cr., pp. 538-548, 592–654. 1 B. & H. L. C. C., pp. 50-71. § 416. Of Rape. The Carnal Knowledge. Rape is the unlawful carnal knowledge of a woman, without her consent. In discussing this crime, three things are to be considered: (1) The carnal knowledge; (2) Its unlawfulness; (3) The absence of consent. To constitute carnal knowledge, penetration is absolutely necessary. There must be res in re; that is the sexual organ of the male must be entered, to some extent, within the sexual organs of the female. But the distance and dura |