§ 614. The killing of a soldier by a sergeant on duty is not necessarily a justifiable homicide, and if with malice it is murder. Ibid.

§ 615. The orders of a superior officer will not themselves justify the killing of a soldier. No one is bound to perform an unlawful act on the order of his superior, and if he does so it makes such superior an accomplice in the crime. Ibid.

§ 616. It is the duty of the officer of the guard in a fort to preserve the peace and suppress disorderly and mutinous conduct, and he may use all reasonable and necessary means to that end, provided the force used is proportionate to the necessity of the case. But the officer in such a case is not bound to weigh with scrupulous nicety the exact amount of force necessary to suppress the disorder. The exercise of a reasonable discretion is all that is required. Ibid.

§ 617. No words applied by one man to another will justify the use of a deadly weapon, nor can they be the lawful occasion of that "heat" which would reduce the act of killing from murder to manslaughter. If a man returns provoking language by a blow from an instrument calculated to produce death, and death follows, the act will be murder. Ibid.

§ 618. It is not murder, but only manslaughter, for the captain of a vessel to wilfully omit to stop the ship and lower the boats or make other attempt to save the life of a member of the crew, who has fallen overboard by accident while on duty, by which omission of duty the seaman is drowned. United States v. Knowles, §§ 654-658. See § 709.

§ 619. Where death is the direct and immediate result of the omission of a party to perform a plain duty imposed upon him by law or contract, he is guilty of a felonious homicide. Ibid.

§ 620. Where the commander of a vessel is charged with allowing a sailor falling overboard to perish, without any effort to save him, when by proper efforts he could have been saved, and there is any doubt as to the conduct of the defendant, his past life and character are entitled to consideration. Ibid.

§ 621. Where a passenger or a seaman falls overboard from a ship at sea, and is not killed by the fall, it is the duty of the captain, both by law and contract, to do everything consistent with the safety of the ship and of the other passengers, necessary to rescue the person overboard. Any neglect to make such efforts is criminal; and if followed by the loss of the person overboard, when by them he might have been saved, the commander is guilty of manslaughter. Ibid. See $ 680.

.

§ 622. Where the captain of a vessel is indicted for wilfully omitting to attempt to rescue a seaman who has fallen overboard from the ship, it is upon the defendant to prove beyond a reasonable doubt that the seaman was killed by the fall. But to convict, the jury must come to a conclusion beyond a reasonable doubt that the seaman could have been saved by proper efforts, and that his death was the consequence of the defendant's neglect. Ibid. § 623. Section 12 of the act of July 7, 1838 (5 Stat. at L., 306), provides that "the captain of any steamboat, by whose negligence or inattention to his duties the life or lives of any person or persons on board said vessel may be destroyed, shall be deemed guilty of manslaughter." Held, that on an indictment under this section it was not necessary to prove wilful mismanagement or misconduct. The inquiry is only whether he did something that is forbidden by law, and whether the loss of life charged in the indictment arose from such cause. The misconduct, negligence or inattention in the management of the vessel, mentioned in the statute, is the omission or commission of any act which may naturally lead to the consequences made criminal. It is no matter what may be the degree of misconduct, whether it be slight or gross, if the proof shows that the accident was the probable result of it. United States v. Farnham, § 659-664.

§ 624. Section 7 of the same act provides a penalty against the captain for neglecting to raise the safety-valve when stopping. Held, on an indictment under section 12, that it was proper to show that the safety-valve had not been raised during the stoppage of the boat at which the explosion took place, and if such failure was the proximate cause of the explosion, such evidence is sufficient to support the indictment. Ibid.

§ 625. Where a person is indicted for murder and there is evidence tending to show that an assault was made by the deceased upon the defendant immediately prior to the killing, the defendant is not entitled to the benefit of a presumption that the assault was of a character sufficient to excuse or justify the homicide. The law presumes every man innocent till he is proved guilty, and this presumption applies as well to the act of the deceased as of the defendant. The misconduct of the deceased must be proved as a matter of fact and will not be presumed without evidence. United States v. Armstrong, §§ 665-669.

§ 626. Because a homicide takes place immediately after an assault by the deceased upon the defendant it does not necessarily follow that the killing was not malicious. There must be some reasonable proportion between the provocation given and the act of resentment. It is not every blow which will excuse the use of a deadly weapon; but in order to repel the pre

sumption of malice the provocation must be such as would account for the deadly blow without imputing to the defendant any more than that infirmity of passion which belongs to men in general, and if the fatal blow resulted, not from such common infirmity of passion, but from a cruel and relentless disposition, then the defendant is guilty of murder notwithstanding the assault.

Ibid.

§ €27. An act of congress provided for the punishment of manslaughter on the high seas, but did not define the offense. Held, that where a fatal stroke was given on the high seas and the victim died on land, the manslaughter was not committed on the high seas, and consequently the defendant could not be punished under the act in question. Ibid. [NOTES. See $3 671-715.]

UNITED STATES v. OUTERBRIDGE.

(Circuit Court for California: 5 Sawyer, 620-625. 1868.)

Charge by MR. JUSTICE FIELD.

STATEMENT OF FACTS.- Gentlemen of the jury: The facts of this case lie in a very narrow compass, and the principles of law applicable to them are very simple and can be readily understood. You are the exclusive judges of the facts; that is to say, it is your province to pass upon the evidence, to give to it such weight as you may deem it entitled, and determine therefrom all disputed questions of fact. The duty of the court will end when it states to you the law by which the offense charged is to be considered, and the principles by which the evidence is to be weighed. The prisoner at the bar is indicted for the crime of murder. The indictment charges that the defendant did, on the 1st of April of the present year, on the high seas, on board of the American vessel Jenny Prince, belonging to citizens of the United States, feloniously, wilfully, and of malice aforethought, make an assault upon one William Anderson, then aboard of said vessel, and by a capstan bar, an instrument of wood, of four feet in length and six inches in circumference, inflict several mortal wounds upon his head and neck, of which he, on the same day, died. The charge here is of the murder of William Anderson, upon the high seas, on the 1st of April

last.

The

§ 628. Laws of the United States respecting murder on the high seas, etc. common law definitions must be resorted to. What is murder at common law. The act of congress under which the indictment is found provides what the punishment shall be for this crime; it declares that the punishment shall be death. But it does not define the crime itself, nor establish any degrees in the turpitude of the offense, as does the law of the state. There is no such designation made in the laws of the United States as murder in the first, or murder in the second or any other degree. The statute simply enacts that if any person upon the high seas, or in any arm of the sea within the admiralty and maritime jurisdiction of the United States, and out of the jurisdiction of any particular state, shall commit the crime of wilful murder, such person shall, upon conviction thereof, suffer death. We must therefore resort to the common law for a definition of the crime. In the absence of statutory provisions, the federal courts are obliged to resort to that law for guide in the construction of legal terms and phrases. By that law murder is defined to be the wilful killing of a human being in the peace of the country, with malice aforethought, either express or implied.

§ 629. Malice defined.

The term malice is here used in a technical sense, and includes not merely hatred and revenge, but every bad and unjustifiable motive. Express malice exists when one, with deliberate premeditation and design formed in advance,

kills another, such premeditation and design being manifested by external circumstances capable of proof, such as lying in wait, antecedent threats, and concerted schemes to do the party bodily harm. Malice is implied by the law from any deliberate and cruel act committed by one person against another. Thus it is implied when one man kills another without provocation, or where the provocation is not great, for no person except one of an abandoned heart could be guilty of such an act without cause, or upon any slight cause. The terms express and implied malice, in truth, indicate the same state of mind, but they are established in different ways; the one by circumstances showing premeditation of the homicide, and the other being inferred only from the act committed.

§ 630. Manslaughter defined.

Manslaughter is the unlawful killing of a human being without malice, express or implied. It may be voluntary or involuntary. It is voluntary when committed with a design to kill, under the influence of a sudden and violent passion caused by great provocation, which the law, in its tenderness to the infirmity of human nature, considers such a palliative of the offense as to rebut the presumption which would otherwise arise of malice. Manslaughter is involuntary when committed by accident, or without any intention to take life. As you will thus perceive, the difference between murder and manslaughter consists in the existence of malice, express or implied, in the one case, and the absence of malice in the other.

§ 631. When malice is implied.

Now, malice is implied in every case of intentional homicide; that is to say, when once it is established that a person was intentionally killed, the law implies that malice existed in the party who caused the death. If there are any circumstances of excuse or palliation which will rebut the implication of malice, it is incumbent upon him to show them. The burden of proof rests upon him, for the law presumes that every person intends to produce the results which are the usual consequences of his acts. A man cannot strike another violently with a bar of iron without inflicting bodily pain; if, therefore, he does thus strike another, the law presumes that he intended thus to inflict pain. The usual effect of a leaden ball fired from a loaded pistol of the common size, at a distance of a few feet only, striking the head or back of a person, is to kill such person; the law therefore presumes that every one who thus fires a loaded pistol within a few feet of the object intends to kill; it therefore implies malice in him. In the present case there is no question as to the homicide charged, nor is there any question that the homicide was committed by the prisoner, nor is it denied that the blows which caused the homicide were intentionally given. The instrument used was of such magnitude and weight that it would, in all probability, have broken the skull, had it been applied with slight force, but the evidence shows that great force was used. There is no element in the case which can bring the homicide within the definition of manslaughter. There was here no sudden and violent passion produced by great provocation, which, for the moment, overpowered the reason of the prisoner. He does not rest his defense upon any such ground. His defense is that he was justified in taking the life of Anderson; that the homicide was required for the preservation of his own life.

§ 632. The right of self-defense.

Now upon this subject of justification the law is explicit. A man may repel force by force in the defense of his person, his family or property, against any

one who manifestly endeavors by violence or surprise to commit a felony, as murder, robbery, or the like. The right to oppose force to force in such case is founded upon the law of nature, and is not and cannot be superseded by the law of society.

§ 633. What is justifiable homicide.

In the definition of justifiable homicide the following particulars, says Mr. Justice Washington, "are to be attended to. The intent must be to commit a felony. If it be only to commit a trespass, as to beat the party, it will not justify the killing of the aggressor. No words, no questions however insulting and irritating, not even an assault, will afford such justification; although it may be sufficient to reduce the offense from murder to manslaughter. In the next place the intent to commit a felony must be apparent, which will be sufficient, although it should afterwards turn out that the real intention was less criminal, or was even innocent. This apparent intent is to be collected from the attending circumstances, such as the manner of the assault, the nature of the weapons used, and the like. And, lastly, to produce this justification, it must appear that the danger was imminent, and the species of resistance used necessary to avert it." United States v. Wiltberger, 3 Wash., 521.

You will observe from this language that the intent to commit the felony must be apparent; that is, in the process of execution, so that the movement towards the execution becomes cognizable by the senses. For example, if a man declares that he will kill another, and moves towards him with a heavy weapon raised in the position to strike, or with a pistol cocked and directed towards him, the intent to commit a felony would be apparent, although in point of fact the party may never have intended to strike, or the pistol may have been unloaded. As observed by Mr. Justice Washington, this apparent intent is to be collected from the attending circumstances, such as the manner of the assault, the nature of the weapons used, and the like.

§ 634. Imminent danger defined.

You will observe from the language cited that the intent to commit a felony must not only be apparent, it must also appear that the danger was imminent, and the species of resistance used necessary to avert it. By imminent danger is meant immediate danger—one that must be instantly met; one that cannot be guarded against by calling on the assistance of others or the protection of the law. And the species of resistance used, that is, the means to prevent the threatened injury, must be such as were necessary to avert it. Tested by these rules, the defense utterly fails. We will not even presume to suggest that the threats of the deceased were the mere coarse vaporings of a brutal sailor, never intended to be carried out. We will assume that, at the time they were uttered, they were the expression of a determined purpose on the part of the deceased. There is no evidence of any subsequent attempt to carry them into execution; nor is there any evidence that there was not adequate means with the captain and the rest of the crew for the protection of the defendant. The danger, if any ever existed, that the threats would be carried into effect, was not imminent. The deceased was at the time asleep, covered by a sail on the deck. If it had been reasonable to believe that on awakening he would have proceeded at once to the execution of his threat, even then the means to secure him and prevent him should have been resorted to. There was sufficient force on board to con

trol him.

§ 635. Threats do not justify homicide.

Mere threats against the person or life of another, without any attempt at

execution, will not justify homicide, nor even when such an attempt is made, unless the danger be so imminent as not to admit of any delay in meeting it on the part of the assailed. No other rule could exist with proper security to human life in society. The case is in your hands. As already said, you are the exclusive judges of the facts; that is to say, it is your exclusive province to pass on the evidence, and to give it such weight as you may judge it entitled to receive. (Verdict, guilty of murder.)

UNITED STATES v. RICE.

(Circuit Court for North Carolina: 1 Hughes, 560–568. 1875.)

STATEMENT OF FACTS.- Defendant, a deputy marshal, was indicted for the murder of Woody, whom he was seeking to arrest for a violation of the internal revenue laws. Woody was armed, his demeanor was hostile, and his behavior such as impressed Rice with the belief that he intended to shoot him. Thereupon Rice shot Woody.

Charge by DICK, J.

As this is a case of considerable importance to the defendant, and also to the due administration of justice, I have deemed it proper to commit to writing my instructions to the jury upon the questions of law involved. In this court, in a trial for crime before one judge, defendants have no right to appeal, and the only remedy which they can have for misdirections to the jury on the part of the judge is a motion for a new trial to be heard before the other judges of the court who were not present at the trial; then, upon a certificate of a division of opinion between the judges upon questions of law, the case may be carried to the supreme court for review. In all capital felonies tried by me, sitting alone, I will allow defendants who may be convicted the benefit of these remedies; and I will always reduce to writing my instructions to the jury, so that if I commit an error it may be corrected by the other judges who are authorized to preside in this court. All persons whose lives are put in jeopardy by a trial in court ought to have the benefit of all remedies afforded by law to guard against error and injustice. The humane and remediable provisions of the law ought to be fully afforded by courts of justice, in favor of human life.

The defendant in this case is charged with murder by an indictment found in the state court, and removed under the provisions of an act of congress to this court. This court has no original jurisdiction of the offense charged, but the case must be tried in the same manner as cases originating in this court; that is, the forms and modes of proceeding and the rules of evidence must be regulated by the course and practice of this court in criminal trials. The law which defines the offense is the criminal law which prevails in this state. This indictment is not founded upon a state statute, but is for an offense at common law. The laws of this state declare that the common law, with certain specified modifications, shall be in full force in this state. If the indictment was founded upon a state statute, we would be bound to regard the construction and exposition placed upon such statute by the supreme court of the state as a rule of decision. As it is founded upon the common law, we will look to the decisions of the state supreme court as highly important guides, but not as absolute authorities. We are at liberty to derive information as to the principles of the common law from the decisions of all the courts of England and this country, which profess to administer criminal justice according to that wise,