Cabbage, 1 Russ. & Ry., 292. The principle enunciated was, "that if the intent be to destroy the article taken, it will be sufficient to constitute the offense of larceny, if done to serve the prisoner or any other person, though not in a pecuniary way." The case was this: The prisoner, to screen his accomplice, who was indicted for stealing a horse, broke into the prosecutor's stable and took away the horse, which he backed into a coal pit and killed. A majority of the judges decided this was larceny. At such a decision we are not surprised to find Lord Abingdon exclaiming, in 1838, when that case was cited in his presence, "I cannot accede to that!"

The second English case on this point is Rex v. Morfit, 1 Russ. & Ry., 307, decided on the authority of the former. There A and B, servants, opened the granary of their master by means of a false key, and took two bushels of beans to give to their master's horses, in addition to the quantity allowed; and it was held to be larceny. Some of the judges alleged that the additional quantity of beans would diminish the work of the men who had to look after the horses, and this diminution in their labor was considered a lucri causa. The astuteness with which the lucri causa was sought for and discovered in that case is strong proof of the stringency of the rule which requires it as an essential ingredient in the crime of larceny. This case is referred to by a recent writer as a "singular case on this point." Archb. Cr. L., ed. 1853. Such it undoubtedly is, as in effect it destroyed the distinction which had existed from an ancient period between larceny and trespass, unless we can, with some of the judges, detect the existence of the lucri causa in that case. Looking into the cases last cited, and the grounds on which they were decided, we deem the observations made in relation to them by the supreme court of Alabama not inappropriate. "It appears to us [they say] that these cases cannot be considered authority in this country. The shadowy and almost imaginary distinctions upon which they rest are at war with that precision and certainty which are the boast of the criminal law of England." 8 Port., 465.

These cases stand in direct opposition to the numerous authorities, English and American, above cited. They introduced a change into the common law as it existed at the time of the emigration of our ancestors to this country; and we cannot recognize modifications recently made in the common law of England as controlling this court. If an authority could have been found emanating from an American court, adopting these hair-breadth distinctions, it certainly could not have eluded the search of the profession.

After a careful examination of the law, we give you, gentlemen, the instructions which follow:

1. That if you believe from the evidence that the prisoner took and carried away the arms, with the intent to appropriate them, or any portion of them, to his own use, or permanently deprive the owner of the same, then he is guilty.

2. But if you shall believe that he did not take the arms for the purpose of appropriating them, or any part thereof, to his own use, and only for the purpose of preventing their being used on himself or his associates, then the prisoner is not guilty. (Verdict, not guilty.)

$563. In general.- A pirate is one who acts solely on his own authority, without any commission or authority from a sovereign state, seizing by force, and appropriating to himself, without discrimination, every vessel he meets with. The difference between a pirate and a robber is that the former acts on the sea and the latter on the land. Davison v. Seal-skins, 2 Paine, 333. See § 512.

$564. Piracy, by the law of nations, is robbery upon the sea; and the act of congress punishing with death any person who shall, "upon the high seas, commit the crime of piracy, as defined by the law of nations," defines the crime with reasonable certainty. United States v. Chapels,* 2 Wheeler, 205.

§ 565. Any aggression of an armed ship which is unauthorized in its character, wanton and cruel in its commission, and utterly without any sanction from any public authority or sovereign power, whether done animo furandi or lucri causa or not, is piracy, and subjects the vessel to forfeiture whether the armament was for a legitimate or an illegitimate purpose. United States v. Brig Malek Adhel, 2 How., 210.

§ 566. At the common law the offense of piracy consists in committing on the high seas those acts of robbery and depredation which, if committed on land, would have amounted to a felony there. There need be no violence used to the master or owner of the vessel, or any putting in fear, as would be required to constitute robbery on land. United States v. Tully,* 1 Gall., 247.

S567. Law applies to citizens and foreigners, when.- The act of congress of May 15, 1820, which provides "that if any person shall, upon the high seas,

commit the crime of robbery, in or upon any ship or vessel, or upon any of the ship's company of any ship or vessel, or the lading thereof, such person shall be adjudged to be a pirate," applies to all persons, whether citizens or foreigners. United States v. Baker,* 5 Blatch., 6.

§ 568. The ninth section of the act of April 30, 1790, declaring that "if any citizen shall commit any piracy or robbery aforesaid, or any act of hostility against the United States, or any citizen thereof, upon the high seas, under color of any commission from any foreign prince or state, or on pretense of authority from any person, such offender shall, notwithstanding the pretense of any such authority, be deemed, adjudged and taken to be a pirate, felon and robber," applies only to citizens of the United States, and not to foreigners. Ibid. $569. Piracy, as punished by act of April 30, 1790, must be committed by citizens of the United States, or upon board of vessels of the United States. United States v. Howard,* 3 Wash., 340.

§ 570. Capture in time of war.- The capture of a Spanish vessel, made by an armed cruiser of the Province of Carthagena, while that province was at war with Spain, cannot be considered as piracy by our courts. The Neustra Senora de la Caridad, 4 Wheat., 497.

§ 571. A capture made by a regularly commissioned vessel of an unacknowledged power, which is engaged in maintaining a contest for independence, is not piracy. The Josefa Segunda, 5 Wheat., 338.

§ 572. Privateers. The act of June, 1812, respecting privateers, is confined to the conduct of persons on board of privateers, and is intended for their government. For piratical acts committed upon others, no punishment or mode of trial by a court martial is prescribed. If piracy is committed by the officers of a privateer, the offense is punished by the proper civil tribunal of the United States, as in case of other piracies. United States v. Jones,* 3 Wash., 209. See § 526.

§ 573. A commission as privateer affords no ground of protection to a charge of piracy. Ibid.

$574. The principle that, in a state of war between two nations, a commission to a private armed vessel from either of the belligerents affords a defense, according to the law of nations, in the courts of the enemy, against a charge of piracy or robbery on the high seas, of which they might be guilty without such authority, did not apply to a private armed vessel commissioned by the Confederate States, the United States, in its political capacity, not having recognized those states as a separate government. United States v. Baker,* 5 Blatch., 6. $575. Where punished.-Piracy is an offense against the law of nations and may be punished by the nation first capturing the offenders. United States v. Darnand, 3 Wall. Jr.,

160.

§ 576. If a prize be found to be a pirate, the officers and crew, and all others on board having any agency in the ship, are to be prosecuted in the circuit court of the United States, according to the laws of the United States, without respect to the nation to which each individual may belong. Prize Ship and Crew,* 1 Op. Att'y Gen'l, 85.

§ 577. Robbery defined.-For the interpretation of the word "robbery" as used in the act of May 15, 1820, punishing robbery committed upon the high seas, we must look to the common law. By this standard the offense consists in feloniously taking the goods or property of another, of any value, from his person, or in his presence, against his will, by violence, or putting him in fear. The taking must be felonious; that is, with a wrongful intent to appropriate the goods of another. It need not be a taking which, if upon the high seas, would amount to piracy by the law of nations. United States v. Baker,* 5 Blatch., 6. See $$ 529§ 578. It is clear that robbery on the high seas is declared to be felony and piracy by the

531.

eighth section of the act "for the punishment of certain crimes." The words, "which, if committed within the body of a county," etc., relate not to "murder or robbery," but to the words immediately preceding, "or any other offense." For the meaning of the word robbery, the common law definition of the term may be resorted to. United States v. Jones,* 3 Wash., 209.

§ 579. Robbery -Punishment.- Under an act of congress declaring that "if any person shall, upon the high seas, or in any haven, bay, or river, out of the jurisdiction of any particular state, commit murder, robbery, or any other crime or misdemeanor, which, if committed in the body of a county, would. by the laws of the United States, be punished with death, it shall amount to piracy," it is not necessary that robbery should be punished with death when committed on land, in order to amount to piracy when committed on the ocean. United States v. Hutchings,* 2 Wheeler, 543.

$580. Must act feloniously. A taking upon the high seas, in order to be piracy, must be felonious. A commissioned cruiser by exceeding his authority does not thereby become a pirate unless he acts feloniously with intent to commit a robbery, and the quo animo may be inquired into. Davison v. Seal-skins, 2 Paine, 333.

$581. Kidnapped Africans regaining their liberty by killing the captain and taking possession of the vessel on which they were carried, on the high seas, are not pirates or robbers. United States v. The Amistad, 15 Pet., 518.

$582. Augmenting force.- Our treaty with Spain declares that no citizen of the United States "shall apply for, or take any commission or letters of marque, for arming any ship or ships to act as privateers" against the king of Spain, or his subjects, or their property, from any prince or state with which said king shall be at war, and if any person of either nation shall take such commission or letters of marque, he shall be punished as a pirate. It is held that, under this treaty, a foreign public ship of war, augmenting its force in our ports, is not a piratical vessel. The Santissima Trinidad and St. Ander, 7 Wheat., 283.

§ 583. Punishment.- Congress has power, under its authority "to define and punish piracies as felonies committed on the high seas, and offenses against the law of nations," to declare that piracy, as defined by the law of nations, shall be punished with death. United States v. Chapels,* 2 Wheeler, 205.

§ 584. Mistake.- An apparent piratical aggression, made under a mistake and not from motives of revenge or malignity, or from abuse of power and a settled purpose of mischief, is not piracy. The Marianna Flora, 11 Wheat., 1.

§ 585. Innocence of owner of ship.- Under section 4 of the act of March 3, 1819 (3 Stat. at L., 513), the innocence of the owners of a ship guilty of piratical aggressions does not save the ship from forfeiture although it saves the cargo. United States v. Brig Malek Adhel, 2 How., 210.

§ 586. Confederating.- In order that a person be guilty of the crime of confederating, corresponding, combining and consulting with pirates, it must be shown that he acted with criminal intent. United States v. Howard,* 3 Wash., 340.

587. It would be corresponding, combining and confederating with pirates for a pilot boat, knowing a vessel to be a pirate, to allow it to follow such pilot boat to harbor, and then demand pilotage, and request a donation of the piratical boat and cargo, which was about to be abandoned by the pirates. Ibid.

§ 588. Cargo of prize. The eighth and ninth sections of the law for the government of the navy, which inflicts punishments upon those who shall take from a vessel captured at sea any part of her cargo, or embezzle the same, or who shall maltreat any of the persons, relates expressly to prizes, or to vessels seized as prizes, and not to acts of piracy. It does not repeal the former act of congress punishing robbery on the high seas. United States v. Jones,* 3 Wash., 209.

§ 589. Liability of crew of privateer.— In order to convict inferior officers of a commissioned privateer of piracy committed under the orders of their captain, it must be established that the prisoners knew, or ought to have known, at the time they acted, that robbery, and not a seizure as a prize, was contemplated by the captain or themselves. It is in this point of view only that the orders of the captain can, in any manner, afford a shield to those whose duty it was to obey them. The conduct of the captain in dividing the plunder with the crew, ordering the plundered vessel to proceed on her voyage, and failing to take steps to obtain a condemnation of the property seized, would be sufficient to make a case of piracy against him; but acceptance of a part of the spoils by the crew does not fix a charge of felonious taking upon them, where the orders of the captain were not inconsistent with the taking of the vessel as a prize, and the crew may have obeyed these orders in the belief that such was the intention of the captain. United States v. Jones,* 3 Wash., 228.

§ 590. It is no excuse for piracy that it was committed under the orders of a superior offi

cer of the vessel, where the prisoner knew or ought to have known that the act was wrong. United States v. Jones, * 3 Wash., 209.

§ 591. Running away with vessel.— Under the statute declaring that "if any captain or mariner of any ship or other vessel shall piratically and feloniously run away with such ship or vessel, or any goods or merchandise to the value of $50, etc., every such offender shall be deemed, taken and adjudged to be a pirate and a felon, and, being convicted thereof, shall suffer death," there need be no violence or putting in fear. The running away with the vessel by the captain or mariner piratically and feloniously are the only facts necessary to constitute the crime. Piratically and feloniously running away with the vessel within the meaning of the act is running away with it with the wrongful and fraudulent intent thereby to convert the same to the taker's own use, or to make the same his own property, against the will of the owner. United States v. Tully,* 1 Gall., 247.

VII. HOMICIDE.

[See $$ 500, 1247, 1729, 1733, 2612.]

SUMMARY - Murder defined, § 592.-No intent to kill, § 593.- Resort to common law for definition, § 594.- Malice defined, §§ 595, 600; express and implied malice, §§ 596–599. — Malice aforethought, distinguishes murder from homicide, §§ 600, 601; need not exist for any definite period before the act, § 601.— Burden of proving malice; presumed from circumstances, § 602.- Manslaughter defined, §§ 603, 605, 606, 621; involved in the crime of murder, § 604.Justifiable and excusable homicide, § 607–610, 617, 625; whether threats will justify, S$ 609, 610.- State law controls in a case against a United States officer on removal from state court, § 611.— Killing by an officer in case of resistance, § 612.— Accidental killing, § 613.- Killing of a soldier by a sergeant on duty, § 614.— Unlawful act in obedience to orders of superior, § 615.— Duty of officer of the guard in a fort, § 616.— Words will not justify a killing, § 617.- Failure of master to save a sailor who falls overboard, §§ 618622.- Death from omission to perform duty. § 619; proof of past life and character, § 620.-Neglect by captain of a steamboat. §§ 623, 624.— Presumption as to character of assault by deceased; burden of proof, §§ 625, 626.- Manslaughter on the high seas, § 627.

§ 592. Murder is the wilful killing of a human being in the peace of the country, with malice aforethought, either express or implied. United States v. Outerbridge, §§ 628–635. See § 671.

§ 593. If a person with malice aforethought fires a gun at another, not intending to kill him, but only to do great bodily harm, and the shot is fatal, it is murder. United States v. Carr, S 643-653.

§ 594. The act of congress punishing murder committed on board of an American vessel upon the high seas, not having defined the crime, nor established any degrees in the turpitude of the cffense, resort must be made to the common law for its definition. United States v. Outerbridge, §§ 628-635.

§ 595. Malice, as a constituent of murder, includes not merely hatred and revenge, but every bad and unjustifiable motive. Ibid. See § 683.

§ 596. 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. Ibid.

§ 597. Malice is implied by law from any deliberate and cruel act committed by one person against another. Ibid.

598. The terms "express and implied malice" 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. Ibid.

§ 599. Malice is implied in every case of intentional homicide. If there are any circumstances of excuse or palliation which will rebut the implication of malice, it is for the defendant to show them.

cide.

Ibid.

§ 600. Malice aforethought is the exact criterion which distinguishes murder from homiIt is not so much spite or malevolence to the deceased as the dictate of a wicked, depraved and malignant heart. Such malice may be either express, as where it is evidenced by such acts as lying in wait, threats and grudges; or implied, as if one kills another without provocation, or on insufficient provocation; for in such a case the law implies malice, for the act is one which could not be done except from the dictates of a wicked and depraved heart. United States v. Carr, $$ 643-653.

601. Although the malice which distinguishes murder from homicide is called malice aforethought, yet there is no particular period of time during which it is necessary that it should have existed, or the prisoner have contemplated the homicide. If, for example, the intent to kill or do other great bodily harm is executed the instant it springs into the mind, the offense is as truly murder as if it had dwelt there for a long period. Ibid.

§ 602. While it is true that, in an indictment for murder, it is necessary for the prosecution to prove a malicious killing, and that mere proof of a killing is insufficient to shift the burden of proof to the defendant, yet the presumption of malice may be raised by the circumstances under which the killing was effected, and the law will in the proper case imply it from the circumstances, without direct proof of its existence. United States v. Armstrong, $665-669. See § 713.

$603. 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 or violent passion, caused by great provocation, which the law considers such a palliative of the offense as to rebut the presumption of malice which would otherwise arise. It is involuntary when committed by accident, or without any intention to take life. United States v. Outerbridge, $$ 629–635. See § 680, 691.

§ 604. The crime of manslaughter is involved in that of murder; and so if a jury, in a prosecution for murder, finds that the homicide was without malice, they may find the defendant guilty of manslaughter alone. United States v. Carr, §§ 613-653.

§ 605. A killing of a person not done wilfully, but upon a sudden heat provoked by an assault, and not by words, is manslaughter. Ibid. See §§ 680, 691.

§ 606. Manslaughter is the unlawful killing of a human being without malice. United States v. Armstrong, $$ 665-663. See $ 680.

§ 607. When a person apprehends that another, manifesting by his attitude a hostile intention, is about to take his life, or to do him enormous bodily harm, and there is reasonable grounds for believing the danger imminent that such design will be accomplished, he may, if no other practicable means of escape are at hand, oppose force by force, and may even kill his assailant, if that be necessary to avoid the apprehended danger; but he must act and decide as to the necessity and the force of the circumstances at his peril, and with the understanding that his conduct is subject to judicial investigation and review. (Per CLIFFORD, J., ́ dissenting.) Wiggins v. People, etc., in Utah, § 670. See § 699.

§ 608. To make homicide justifiable, the intent must be to commit a felony; such intent must be apparent. And 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. United States v. Outerbridge, §§ 628–635.

§ 609. Mere threats against the person or life of another, without any attempt at execution, will not justify homicide; nor even when such 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. Ibid.

§ 610. On a trial for murder, where the question is as to what was the attitude of the deceased toward the plaintiff at the time of the fatal encounter, recent threats are admissible to show that this attitude was one hostile to the defendant, even though such threats were not communicated to the defendant. Such evidence is not admissible to show the quo animo of the defendant, but may be relevant to show that at the time of the fatal meeting the deceased was seeking defendant's life. Wiggins v. People, etc., in Utah, § 670.

§ 611. Upon the trial of an officer of the United States for murder in executing process, upon an indictment found in a state court but removed to the federal court under the act of congress providing for such removals, the law which is to govern is the law which prevails in the state. United States v. Rice, §§ 636-642.

§ 612. Where the defendant, a United States deputy marshal, fired upon and killed the deceased, the court, upon the trial, instructed the jury that, if the prisoner was a known officer of the law and had in his hands, at the time of the homicide, legal process authorizing and commanding him to arrest the deceased, and the deceased made resistance to the execution of legal process with a gun in his hands, and had manifested and continued to entertain a purpose to use such gun if an arrest was attempted, the defendant was not guilty. They were further instructed that if resistance was made but had entirely ceased, and the deceased had yielded himself quietly and completely into the custody of the officer, and no longer had any purpose of resistance, the defendant was guilty of manslaughter; and if sufficient time had elapsed for the prisoner to get over the excitement caused by the resistance, then he was guilty of murder. Ibid. See § 688.

§ 613. If, on an indictment for murder, it appears that the act which resulted in the homicide was accidental on the part of the defendant, and he was engaged in no unlawful act at the time, the defendant must be acquitted. United States v. Carr, §§ 643–653. See § 715.