TITLE VIII. OF CRIMES AGAINST THE PERSON. Chapter I. Homicide, §§ 187-199. II. Mayhem, §§ 203; 204. III. Kidnapping, §§ 207-209. IV. Robbery, §§ 211-214. V. Attempts to Kill, §§ 216-219. VI. Assaults with Intent to Commit Felony, Other Than Assaults with In § 187. MURDER DEFINED. Murder is the unlawful killing of a human being, with malice aforethought. Enacted February 14, 1872, founded upon § 19 Criminal Practice Act, Stats. 1850, p. 231. As to assault by life convict being punishable with death, see post, § 246. As to assault with intent to kill, see post, § 217. As to assault with Intent to commit other felony, see post, §§ 220-222. As to attempts to kill generally, see post, §§ 216-219. As to degrees of murder, see post, § 189. As to necessity that death shall occur within a year and a day, see post, 194. Such § 188. MALICE DEFINED. [EXPRESS AND IMPLIED MALICE.] malice may be expressed or implied. It is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature. It is implied, when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart. Enacted February 14, 1872, founded upon §§ 20, 21 Criminal Practice Act (Stats. 1850, p. 231), as amended April 19, 1856, Stats. 1856, p. 219. § 189. DEGREES OF MURDER. All murder which is perpetrated by means of poison, or lying in wait, torture; or by any other kind of wilful, deliberate, and premeditated killing, or which is committed in the perpetration or attempt to perpetrate arson, rape, robbery, burglary, or mayhem, is murder of the first degree; and all other kinds of murders are of the second degree. Enacted February 14, 1872, founded on § 21 Criminal Practice Act (Stats. 1850, p. 231), as amended April 19, 1856, Stats. 1856, p. 219; amendment approved March 30, 1874, Code Amdts. 1873-4, p. 427. As to indictment for murder and its sufficiency, see post, §§ 959, 960. As to Justification or excuse for homicide, and burden of proving same, see post, § 1105. § 190. PUNISHMENT OF MURDER. Every person guilty of murder in the first degree shall suffer death, or confinement in the state prison for life, at the discretion of the jury trying the same; or, upon a plea of guilty, the court shall determine the same; [Second degree murder.] and every person guilty of murder in the second degree is punishable by imprisonment in the state prison not less than ten years; [Person under eighteen years.] provided, however, that the death penalty shall not be imposed or inflicted upon any person for murder committed before such person shall have reached the age of eighteen years; [Burden of proof as to age.] provided, further, that the burden of proof as to the age of said person shall be upon the defendant. Enacted February 14, 1872, founded upon § 21 Criminal Practice Act, Stats. 1850, p. 231; Amendment approved March 30, 1874, Code Amdts. 1873-4, p. 457; May 13, 1921, Stats. and Amdts. 1921, p. 98. In effect July 29, 1921. § 191. PETIT TREASON ABOLISHED. The rules of the common law, distinguishing the killing of a master by his servant, and of a husband by his wife, as petit treason, are abolished, and these offenses are homicides, punishable in the manner prescribed by this chapter. Enacted February 14, 1872, founded on § 39 Criminal Practice Act, Stats. 1850, p. 233; amendment by Code Commission, Act March 16, 1901, Stats. and Amdts. 1900-1, p. 246, held unconstitutional, see history, § 5 ante. § 192. MANSLAUGHTER DEFINED. VOLUNTARY AND INVOLUNTARY MANSLAUGHTER. Manslaughter is the unlawful killing of a human being, without malice. It is of two kinds: 1. Voluntary—upon a sudden quarrel or heat of passion; 2. Involuntary-in the commission of an unlawful act, not amounting to felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection. Enacted February 14, 1872, founded upon and embodying the material portions of §§ 22, 23, 24, 25 Criminal Practice Act, Stats. 1850, p. 231. As to punishment for manslaughter, see post, § 193. § 193. PUNISHMENT OF MANSLAUGHTER. Manslaughter is punishable by imprisonment in the state prison not exceeding ten years. Enacted February 14, 1872, founded on § 26 Criminal Practice Act, Stats. 1850, p. 231. § 194. DECEASED MUST DIE WITHIN A YEAR AND A DAY. To make the killing either murder or manslaughter, it is requisite that the party die within a year and a day after the stroke received or the cause of death administered; in the computation of which the whole of the day on which the act was done shall be reckoned the first. Enacted February 14, 1872, founded on § 27 Criminal Practice Act, Stats. 1850, p. 231. § 195. EXCUSABLE HOMICIDE. Homicide is excusable in the following cases: 1. When committed by accident and misfortune, in lawfully correcting a child or servant, or in doing any other lawful act by lawful means, with usual and ordinary caution, and without any unlawful intent. 2. When committed by accident and misfortune, in the heat of passion, upon any sudden and sufficient provocation, or upon a sudden combat, when no undue advantage it taken, nor any dangerous weapon used, and when the killing is not done in a cruel or unusual manner. Enacted February 14, 1872; amendment by Code Commission, Act March 16, 1901, Stats. and Amdts. 1900-1, p. 446, held unconstitutional, see history, § 5 ante. As to burden of proving excusable or Justifiable homicide, see post, § 1105. As to excusable homicide not being punishable, see post, § 199. § 196. JUSTIFIABLE HOMICIDE BY PUBLIC OFFICERS. Homicide is justifiable when committed by public officers and those acting by their command in their aid and assistance, either 1. In obedience to any judgment of a competent court; or, 2. When necessarily committed in overcoming actual resistance to the execution of some legal process, or in the discharge of any other legal duty; or, 3. When necessarily committed in retaking felons who have been rescued or have escaped, or when necessarily committed in arresting persons charged with felony, and who are fleeing from justice or resisting such arrest. Enacted February 14, 1872. As to burden of proving homicide justifiable, see post, § 1105. § 197. JUSTIFIABLE HOMICIDE BY OTHER PERSONS. Homicide is also justifiable when committed by any person in either of the following cases: 1. When resisting any attempt to murder any person, or to commit a felony, or to do some great bodily injury upon any person; or, 2. When commitetd in defense of habitation, property, or person, against one who manifestly intends or endeavors, by violence or surprise, to commit a felony, or against one who manifestly intends and endeavors, in a violent, riotous, or tumultuous manner, to enter the habitation of another for the purpose of offering violence to any person therein; or, 3. When committed in the lawful defense of such person, or of a wife or husband, parent, child, master, mistress, or servant of such person when there is reasonable ground to apprehend a design to commit a felony or to do some great bodily injury, and imminent danger of such design being accomplished; but such person, or the person in whose behalf the defense was made, if he was the assailant or engaged in mortal combat, must really and in good faith have endeavored to decline any further struggle before the homicide was committed; or, 4. When necessarily committed in attempting, by lawful ways and means, to apprehend any person for any felony committed, or in lawfully suppressing any riot, or in lawfully keeping and preserving the peace. Enacted February 14, 1872, founded upon §§ 29, 31, 32, 33, 34, 35 Criminal Practice Act, Stats. 1850, p. 232. As to bare fear not justifying a homicide, see post, § 198. As to burden resting on accused to show homicide justifiable, see post § 1105. As to defense of home justifying homicide, when, see post, § 198. As to duty of one called upon to assist in arrest of felon, see post, § 839. § 198. BARE FEAR NOT TO JUSTIFY KILLING. A bare fear of the commission of any of the offenses mentioned in subdivisions two and three of the preceding section, to prevent which homicide may be lawfully committed, is not sufficient to justify it. But the circumstances must be sufficient to excite the fears of a reasonable person, and the party killing must have acted under the influence of such fears alone. Enacted February 14, 1872, founded on § 30 Criminal Practice Act, Stats. 1850, p. 232. § 199. JUSTIFIABLE AND EXCUSABLE HOMICIDE NOT PUNISHABLE. The homicide appearing to be justifiable or excusable, the person indicted must, upon his trial, be fully acquitted and discharged. Enacted February 14, 1872, a reproduction of § 36 Criminal Practice Act, Stats. 1850, p. 232. § 203. Mayhem defined. CHAPTER II. MAYHEM. § 204. Mayhem. how punishable. § 203. MAYHEM DEFINED. Every person who unlawfully and maliciously deprives a human being of a member of his body, or disables, disfigures, or renders it useless, or cuts or disables the tongue, or puts out an eye, or slits the nose, ear, or lip, is guilty of mayhem. Enacted February 14, 1872, founded upon § 46 Criminal Practice Act, Stats. 1850, p. 233; amendment approved March 30, 1874, Code Amdts. 1873-4, p. 427. § 204. MAYHEM, HOW PUNISHABLE. Mayhem is punishable by imprisonment in the state prison not exceeding fourteen years. Enacted February 14, 1872, founded on § 46 Criminal Practice Act, Stats. 1850, p. 233. CHAPTER III. KIDNAPPING. § 207. Kidnapping defined. § 208. Punishment of kidnapping. § 209. Penalty for kidnapping [for purpose of extortion or robbery.] § 207. KIDNAPPING DEFINED. Every person who [1] forcibly steals, takes, or arrests any person in this state, and carries him into another country, state, or county, or into another part of the same county, or [2] who forcibly takes or arrests any person, with a design to take him out of this state, without having established a claim, according to the laws of the United States, or of this state, or [3] who hires, persuades, entices, decoys, or seduces by false promises, misrepresentations, or the like, any person to go out of this state, or to be taken or removed therefrom, for the purpose and with the intent to sell such person into slavery or involuntary servitude, or [4] otherwise employ him for his own use, or to the use of another, without the free will and consent of such persuaded person; and every person who, [5] being out of this state, abducts or takes by force or fraud any person contrary to the law of the place where such act is committed, and brings, sends, or conveys such person within the limits of this state, and is afterwards found within the limits thereof, is guilty of kidnaping. Enacted February 14, 1872, founded upon §§ 53, 54, 55 Criminal Practice Act, Stats. 1850, p. 234; amendment by Code Commission, Act March 16, 1901, Stats. and Amdts. 1900-1, p. 447, held unconstitutional, see history, § 5 ante; amendment re-enacted March 21, 1905, Stats. and Amdts. 1905, p. 653. As to kidnaping and abduction generally, see post, § 784. § 208. PUNISHMENT OF KIDNAPING. Kidnaping is punishable by imprisonment in the state prison not less than one nor more than twenty-five years. Enacted February 14, 1872, founded on § 54 Criminal Practice Act, Stats. 1850, p. 234; amendment approved May 28, 1923, Stats. and Amdts. 1923, p. 486. In effect August 16, 1923. § 209. PENALTY FOR KIDNAPING [FOR PURPOSE OF EXTORTION OR ROBBERY]. Every person who maliciously, forcibly, or fraudulently takes or entices away any person with intent to restrain such person and thereby to commit extortion or robbery, or exact from the relatives or friends of such person any money or valuable thing, is guilty of a felony, and shall be punished therefor by imprisonment in the state's prison for life, or any number of years not less than ten. Enactment approved March 6, 1901, Stats. and Amdts. 1900-1, p. 98. |