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1367. Homicide Defined-Homicide is the killing of one human being by another. (2308 R. L. 1910.)

1368. Homicide Classified-Homicide is either: First, murder; Second, manslaughter; Third, excusable homicide; or, Fourth, justifiable homicide. (2309 R. L. 1910.)

1369. Proof Necessary-No person can be convicted of murder or manslaughter, or of aiding suicide, unless the death of the person alleged to have been killed and the fact of killing by the accused are each established as independent facts beyond a reasonable doubt. (2310 R. L. 1910.)

1370. 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 deemed homicides, punishable in the same manner prescribed by this article. (2311 R. L. 1910.)

Statute of limitations in, see sec. 561.
Burden of proof in, see sec. 208.

Jurisdiction in, see sec. 502.

Indictment must allege that act was perpetrated "with a premeditated design to effect the death", etc., of the person killed. The ordinary common law indictment is not sufficient under first subdivision of this section. Jewell v. Terr., 4 Okla. 53.

Indictment must charge that the unlawful acts by which the homicide was perpetrated, and the killing itself, were all done with the premeditated design to effect death. Holt v. Terr., 4 Okla. 76; Wright v. Terr., 5 Okla. 78.

When charging that death was inflicted with a certain instrument, naming it, it is not necessary to allege that same was a dangerous and deadly weapon. Johnson v. State, 1 Okla. Cr. 321, 97 P. 1059.

Indictment must charge that act was done without authority of law, but "unlawfully" has same import. Fooshee v. State, 3 Okla. Cr. 667, 108 P. 554.

Not necessary to allege that deceased was a "human being", nor to allege that defendant made an assault upon the deceased. Fooshee v. State, 3 Okla. Cr. 668, 108 Pac. 554.

Information for, by cutting.

621.

Davis v. State, 15 Okla. Cr. 388, 177 P.

Information for, by shooting. Brantley v. State, 15 Okla. Cr. 6, 175

P. 51.

Under indictment under first subdivision conviction can be had under any other subdivision. Holmes v. State, 6 Okla. Cr. 542, 119 P. 430; Turner v. State, 8 Okla. Cr. 11, 126 P. 452; Jones v. State, 15 Okla. Cr. 547, 179 P. 619.

An information for murder includes every degree of homicide and of simple assault. Turner v. State, 8 Okla. Cr. 11, 126 P. 452.

Where more than one person is charged, information may allege that weapon was held in hands of all.-Id.

Place of death of deceased need not be alleged. Defendant should be charged in the county in which the injury was inflicted. Lloyd v. State, 6 Okla. Cr. 76, 116 P. 959; Albright v. Terr, 11 Okla. 497.

Persons armed with deadly weapons entering into mutual combat and one of them be slain, it is murder. Ex parte Colby et al., 6 Okla. Cr. 187; Evans v. State, 8 Okla. Cr. 78, 126 P. 586.

Notwithstanding there may be not actual danger, the guilt of defendant must depend on the circumstances as they appeared to him, but such danger must not result by the acts of defendant. Reed v. State, 2 Okla. Cr. 591, 103 P. 1042; Price v. State, 1 Okla. Cr. 359, 98 P. 447; Smith v. State, 5 Okla. Cr. 282, 114 P. 350; Mulkey v. State, 5 Okla. Cr. 77, 113 P. 532.

Whether the appearance was such as to cause a reasonable apprehension on part of defendant is a question for the jury. Turner v. State, 4 Okla. Cr. 166; Johnson v. State, 5 Okla. Cr. 13, 113 Pac. 552. Mere fact that defendant may be angry or voluntarily intoxicated will not reduce homicide to manslaughter; provided, defendant was in such condition as form a design to effect death. Morris v. Terr., 1 Okla. Cr. 618, 99 P. 760; Miller v. State, 9 Okla. Cr. 55, 130 P. 813; Updike v. State, 9 Okla. Cr. 124, 130 P. 1107; Cheadle v. State, 11 Okla. Cr. 566; Perryman v. State, 12 Okla. Cr. 500, 159 P. 937.

Evidence as to whether accused was intoxicated is competent to aid the jury in determining whether he acted under a well-grounded belief of imminent danger. Stouse v. State, 6 Okla. Cr. 415, 119 P. 271.

State of defendant's intoxication is admissible to show absence of deliberation. Beshirs v. State, 14 Okla. Cr. 578.

Plea of insanity, accident, and self-defense may be rebutted by showing that, immediately after the homicide defendant armed himself and left. Yarbrough v. State, 13 Okla. Cr. 140, 162 P. 678.

Declarations and acts of defendant are admissible insofar as they relate to his sanity. Reed v. State, 14 Okla. Cr. 651, 174 P. 800.

Presumption of sanity must be overcome by evidence sufficient to raise a reasonable doubt. Smith v. State, 12 Okla. Cr. 307, 155 P. 699.

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See erroneous instructions on shifting burden of proof in self-defense. Slate v. State, 15 Okla. Cr. 201, 175 P. 843.

Instructions on self-defense approved. Brantley v. State, 15 Okla. Cr. 6, 175 P. 51.

Rule of self-defense where defendant voluntarily enters into combat. Davis v. State, 15 Okla. Cr. 387, 177 P. 621.

Conspiracy need not be alleged where more than one is jointly charged, but instructions may be given on conspiracy where same is supported by the evidence. Collins v. State, 15 Okla. Cr. 97, 175 P. 124. Instructions should be given on every degree of homicide which is supported by evidence. See instructions. Tubbey v. State, 15 Okla. Cr. 496, 178 Pac. 491.

When charge is by lying in wait, and defense is an alibi, error to instruct on lesser degree. Regnier v. Terr., 15 Okla. 652.

Where the evidence clearly shows murder, instructions should not be given on manslaughter. Leseney v. State, 13 Okla. Cr. 247, 163 P. 956; Swan v. State, 13 Okla. Cr. 546, 165 P. 627.

Where the evidence would warrant a verdict of manslaughter, however slight, instruuctions should be given accordingly. James v. State, 14 Okla. Cr. 204, 169 P. 1127.

Where evidence tends to show self-defense, instructions should be accordingly. Anderson v. State, 13 Okla. Cr. 264, 164 P. 128.

An act of deliberation strips homicide of every element of manslaughter. Williams v. State, 13 Okla. Cr. 189, 163 P. 279.

Homicide committed in the commission of a felony is murder. Frits v. State, 8 Okla. Cr. 342, 128 P. 170.

Improper for an officer to permit a person committed for murder to go at large. State v. Brown, 8 Okla. Cr. 40, 126 P. 245.

Defendant, may show what weapons were on deceased. Rogers v. State, 8 Okla. Cr. 226, 127 P. 365.

Previous assaults on defendant by deceased are admissible. Rogers v. State, 8 Okla. Cr. 226, 127 P. 365.

Proof of the killing is sufficient to shift the burden of proof to defendant. Williams v. State, 9 Okla. Cr. 206, 131 P. 179.

Where the evidence shows defendant guilty of murder and under an instruction he is found guilty of manslaughter he cannot complain. Steward v. State, 9 Okla. Cr. 327, 131 P. 725.

As a matter of law the court should say whether there is any evidence tending to reduce to manslaughter. Cannon v. State, 1 Okla. Cr. 600, 99 P. 622; Ballard v. State, 12 Okla. Cr. 277, 154 P. 1197.

Defendant has right to show the commission of the crime by someone other than himself, but such showing must not be merely speculative. Irvin v. State, 11 Okla. Cr. 301, 146 P. 453.

The motives to commit crimes should be judged from the information upon which the party acts, rather than the accuracy of such information. Irvin v. State, 11 Okla. Cr. 302, 146 P. 453.

One who brings on an affray cannot avail himself of self-defense. Young v. State, 11 Okla. Cr. 22, 141 P. 285; Wadsworth v. State, 9 Okla Cr. 84, 130 P. 808; Weatherholt v. State, 9 Okla. Cr. 162, 131 P. 185; Moutry v. State, 9 Okla. Cr. 623, 132 P. 915.

To constitute justification of self-defense there must be some probative facts of such defense. Garrett v. State, 15 Okla. Cr. 48, 174 Pac. 799. In double homicide defendant may be acquitted of killing the one, and convicted of killing the other. Morris v. State, 1 Okla. Cr. 618, 99 P. 760.

The acts, conduct, and demeanor of a defendant may be shown for the purpose of showing his state of mind, provided such is not too remote from the act charged. The law presumes fresh provocation, rather than antecedent malice. The wife may act on apparently imminent danger to her husband. Clemmons v. State, 8 Okla. Cr. 159, 125 P. 704. As acts, conduct, and demeanor of defendant, see Williams v. State, 4 Okla. Cr. 524; Champton v. State, 7 Okla. Cr. 291, 123 P. 571.

Defendant's knowledge of the temper and disposition of deceased from his personal knowledge as well as otherwise, is admissible. Sneed v. Terr., 16 Okla. 641.

Defendant is not required to measure accurately the force necessary to repel an attack. Franks v. State, 8 Okla. Cr. 71, 126 P. 582.

Where there is evidence of self-defense, defendant may show deceased's habit of carrying pistol, and of making unprovoked attacks on other parties. Mulkey v. State, 5 Okla. Cr. 76, 113 P. 532.

1371. Domestic or Confidential Relations-Whenever the grade or punishment of homicide is made to depend upon its having been committed under circumstances evincing a depraved mind or unusual cruelty, or in a cruel manner, the jury may take into consideration the fact that any domestic or confidential relation existed between the accused and the person killed, in determining the moral quality of the acts proved. (2312 R. L. 1910.)

1372. Murder-Homicide is murder in the following cases First: When perpetrated without authority of law and with a premeditated design to effect the death of the person killed, or of any other human being. Second: When perpetrated by any act imminently dangerous to others and evincing a depraved mind, regardless of human life, although without any premeditated design to effect the death of any particular individual. Third: When perpetrated without any design to effect death by a person engaged in the commission of any felony. (2313 R. L. 1910.)

1373. Design to Effect Death Inferred-A design to effect death is inferred from the fact of killing, uniess the circumstances raise a reasonable doubt whether such design existed. (2314 R. L. 1910.)

1374. Premeditation-A design to effect death sufficient to constitute murder may be formed instantly before committing the act by which it is carried into execution. (2315 R. L. 1910.)

1375. Anger or Intoxication-Homicide committed with a design to effect death is not the less murder because the perpetrator was in a state of anger or voluntary intoxication at the time. (2316 R. L. 1910.)

1376. Act Imminently Dangerous-Homicide perpetrated by an act imminently dangerous to others and evincing a depraved mind regardless of human life, is not the less murder because there was no actual intent to injure others. (2317 R. L. 1910.)

1377. Duel Without the State-Any person who, by previous appointment within the State, fights a duel without the State, and in so doing inflicts a wound upon his antagonist or any other person, whereof the person injured dies, and every second engaged in such duel, is guilty of murder, and may be indicted, tried and convicted in any county of the State. 2318 R. L. 1910.)

1378. Punishment for Murder-Any person convicted. of murder shall suffer death, or imprisonment at hard labor in the state penitentiary for life, at the discretion of the jury. Upon trial of an indictment for murder, the jury, if they find the defendant guilty, must designate in their verdict whether he shall be punished by death or imprisonment for life at hard labor, and the judgment of the court shall be in accordance therewith. But upon a plea of guilty the court shall determine the same. (2319 R. L. 1910.)

On plea of guilty, sections 877 and 878 have no application.

Court must determine punishment on plea of guilty. State v. Johnson, 1 Okla. Cr. 155, 96 P. 26; Opinion of the Judges, 6 Okla. Cr. 18. 1379. Manslaughter in First Degree-Homicide is manslaughter in the first degree in the following cases:

First. When perpetrated without a design to effect death by a person while engaged in the commission of a misde

meanor.

Second. When perpetrated without a design to effect death, and in a heat of passion, but in a cruel and unusual manner, or by means of a dangerous weapon; unless it is committed under such circumstances as constitute excusable or justifiable homicide.

Third: When perpetrated unnecessarily either while resisting an attempt by the person killed to commit a crime, or after such attempt shall have failed. (2320 R. L. 1910.)

Heat of passion alone does not reduce murder to manslaughter. Mere

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