or maintaining a public nuisance, or for obstructing a public highway or a navigable stream.

Where a railroad is legally located upon a public highway, the necessary and reasonable use of such highway by such railroad in the transaction of its business, is not an illegal obstruction of the highway. State v. Louisville, etc., Co., 86 Ind. 114.

Corporations may be prosecuted criminally for obstructing public highways, and the fact that a removal of the obstructions might be compelled by mandate is no defense. State v. Baltimore, etc., Co., 120 Ind. 298.

1971. (1898.) Definitions.-320. All definitions of the terms in the act prescribing the rules for pleading and practice in civil actions are adopted in this act, so far as the same are applicable.

See sections 240, 1309.

1972. (1899.) "Person" defined.-321. When the term "person," or other word, is used to designate the party whose property is the subject of an offense, or against whom any act is done, with intent to defraud or injure, the term may be construed to include the United States or any foreign government, this state or any other state, territory, or any public or private corporation.

By the fifth clause of section 1309, the word “person” includes bodies politic and corporate. Where it is alleged that property belongs to a church organization it will be presumed that such organization is a corporation. White v. State, 69 Ind. 273.

1973. (1900.) Laws and usages continued,-322. The laws and usages of this state relative to pleading and practice in criminal actions not inconsistent herewith, so far as the same may operate in aid thereof or supply any omitted case, are hereby continued in force.

See section 1442.

As to the effect on a pending trial when a term expires by limitation of law, see Wright v. State, 5 Ind. 290; Morgan v. State, 12 Ind. 448; Walker v. State, 102 Ind. 502.

1974. (1901.) Repealing and saving clauses.-323. An act entitled "An act to revise, simplify and abridge the rules, practice, pleadings, and forms in criminal actions in the courts of this state,' approved June 17, 1852, and all other laws within the purview of this act, and inconsistent with the provisions thereof, are hereby repealed; but this repeal shall not affect any prosecutions pending under existing laws, and such prosecutions shall be continued to a final termination under the provisions of this act.

This code and the act defining public offenses both took effect on September 19, 1881, and are to be construed together, and when so construed the right to commence prosecutions for crimes committed before September 19, 1881, after such date, is saved. Sanders v. State, 77 Ind. 227.

Prosecutions pending at the time this code took effect were saved by this section, and the proceedings therein were governed by this code after the same went into force. McCalment v. State, 77 Ind. 250.

41

[1881 S., p. 174. In force September 19, 1881.]

1975. (1902.) Treason.-1. Whoever levies war against this state, or knowingly adheres to its enemies, giving them aid or comfort, is guilty of treason against the state of Indiana, and, upon conviction thereof, shall suffer death or be imprisoned in the state prison during life, in the discretion of the jury.

1976. (1903.) Misprison of treason.-2. Whoever, having knowledge that any person has committed treason or is about to commit treason against this state, willfully omits or refuses to give information thereof to the governor or some judge of the state, as soon as may be, is guilty of misprison of treason; and, upon conviction thereof, shall be imprisoned in the state prison for any period not exceeding twenty-one years and fined in any sum not exceeding ten thousand dollars, and shall also be disfranchised and rendered incapable of holding any office for any period not less than ten years.

[1881 S., p. 174. In force September 19, 1881.]

1977. (1904.) Murder in first degree.-3. Whoever purposely and with premeditated malice, or in the perpetration of or attempt to perpetrate, any rape, arson, robbery, or burglary, or by administering poison or causing the same to be done, kills any human being, is guilty of murder in the first degree, and upon conviction thereof, shall suffer death or be imprisoned in the state prison during life, in the discretion of the jury.

See section 1814.

Premeditated malice requires that there should be time and opportunity for deliberate thought after the mind conceives the intention of taking life, but if the conception is meditated upon and a deliberate determination formed to do the act, then no matter how soon the act is committed, it is murder in the first degree. Fahnestock v. State, 23 Ind. 231; Watson v. State, 63 Ind. 548; Binns v. State, 66 Ind. 428; Koerner v. State, 98 Ind. 7; Aszman v. State, 123 Ind. 347.

Deliberation and premeditation being of the essence of the crime of murder in the first degree, the person committing such crime must have mental capacity sufficient to think deliberately and determine rationally as to the nature and consequences of his acts; and any matter affecting such mental capacity should be considered in determining the question of guilt. Aszman v. State, 123 Ind. 347.

If a building is burglariously entered, and while the burglar is inside for the purpose of effecting the object of his entry he kills a person, such killing is done in the perpetration of a burglary. Bissot v. State, 53 Ind. 408.

If in the commission of robbery life is taken it is murder in the first degree, although there was no intent to kill. Moynihan v. State, 70 Ind. 126.

If a private citizen apprehends a person in the commission of a felony and attempts to arrest him without process, and such person in resisting arrest kills such citizen, it is murder in the first degree. Kennedy v. State, 107 Ind. 144.

The acts of the accused must cause death in order to constitute murder, but such acts need not be the direct and immediate cause of death. Kelley v. State, 53 Ind. 311; Harvey v. State, 40 Ind. 516.

Malice may be inferred from the intentional use of a deadly weapon in such a manner as likely to cause death, but this inference may be rebutted. McDermott v. State, 89 Ind. 187; Kingen v. State, 45 Ind. 518; Miller v. State, 37 Ind. 432; Clem v. State, 31 Ind. 480.

As to the form and contents of an indictment for murder in the first degree, see Dillon v. State, 9 Ind. 408; Cordell v. State, 22 Ind. 1; West v. State, 48 Ind. 483; Sheperd v. State, 54 Ind. 25; Meiers v. State, 56 Ind. 336; Dennis v. State, 103 Ind. 142; Welch v. State, 104 Ind. 347; Kahlenbeck v. State, 119 Ind. 118.

As to the sufficiency and contents of an indictment for murder by administering poison, see Carter v. State, 2 Ind. 617; Bechtelheimer v. State, 54 Ind. 128; Snyder v. State, 59 Ind. 105; Epps v. State, 102 Ind. 539.

An indictment for murder need not state the portion of the body on which the wound was inflicted. Jones v. State, 35 Ind. 122.

An indictment for murder need not aver that the person killed was a human being. Merrick v. State, 63 Ind. 327.

An indictment for murder must show how the acts of the defendant caused death. Sheperd v. State, 54 Ind. 25.

It need not be alleged in the indictment that the defendant is of sound mind. Fahnestock v. State, 23 Ind. 231.

The indictment need not allege that the killing was unlawful. Beavers v. State, 58 Ind. 530,

It is unnecessary to allege that the weapon used by the defendant was held in his hands. Dennis v. State, 103 Ind. 142.

If all the facts necessary to constitute murder are stated in an indictment, the words 'kill and murder" need not be used. Henning v. State, 106 Ind. 386.

If a person being without fault is assailed in such a manner as to be made to believe, and has reasonable ground to believe, that his life is in danger, or that he is in danger of great bodily harm, he will be justified in taking the life of his assailant, although such danger did not actually exist. Wall v. State, 51 Ind. 453; West v. State, 59 Ind. 113; Presser v. State, 77 Ind. 274; Bryant v. State, 106 Ind. 549; Batten v. State, 80 Ind. 394.

Deadly weapons may be used in the justifiable defense of the person. Kingen v. State, 45 Ind. 518; Hays v. State, 77 Ind. 450.

If the killing is justifiable, the defendant is excusable, whether he intended to take the life of his assailant or not. Hicks v. State, 51 Ind. 407; McDermot v. State, 89 Ind. 187.

may, without reRunyan v. State,

Persons without fault, and being where they have a right to be, treating, repel force by force to the extent of taking life, if need be. 57 Ind. 80; Miller v. State, 74 Ind. 1; Presser v. State, 77 Ind. 274. If the party attacked is in fault then he must retreat before he will be justified in killing his assailant. Story v. State, 99 Ind. 413.

To justify the taking of life the party himself must be without fault. Story v. State, 99 Ind. 413; Barnett v. State, 100 Ind. 171; Smurr v. State, 105 Ind. 125.

Threats alone will not justify the taking of life. Rauck v. State, 110 Ind. 384. Persons occupying the relation of family, guardian and ward, master and servant, may defend each other against an assailant the same as if personally attacked. Waybright v. State, 56 Ind. 122; Smurr v. State, 105 Ind. 125.

A jury must be called to assess the punishment on a plea of guilty of murder in the first degree. Wartner v. State, 102 Ind. 51; Lowrey v. Howard, 103 Ind. 440.

1978. (1905.) Murder by duel in this state.-4. Whoever fights a duel with another in this state, and in so doing inflicts a wound upon his antagonist or any other person, whereof the person thus injured shall die, is guilty of murder in the first degree, and, upon conviction thereof, shall suffer death or be imprisoned in the state prison during life, in the discretion of the jury.

1979. (1906.) Murder by duel outside of this state.-5. Whoever, by previous appointment made within, fights a duel without this state, and in so doing, inflicts a mortal wound upon any person, whereof the person thus injured shall die within this state, is guilty of murder in the first degree, and, upon conviction thereof, shall suffer death or be imprisoned in the state prison during life, in the discretion of the jury.

1980. (1907.) Murder in second degree.-6. Whoever purposely and maliciously, but without premeditation, kills any human being, is guilty of murder in the second degree, and, upon conviction thereof, shall be imprisoned in the state prison during life.

See sections 1814-15.

As to the requisites of an indictment for murder in the second degree, see Dukes v. State, 11 Ind. 557.

In murder in the second degree there must be a formed design and purpose to kill, but the act must be immediately accomplished without premeditation. Fahnestock v. State, 23 Ind. 231.

Murder in the second degree must be perpetrated purposely and maliciously. Brooks v. State, 90 Ind. 428.

1981. (1908.) Manslaughter.-7. Whoever unlawfully kills any human being without malice, express or implied, either voluntarily, upon a sudden heat, or involuntarily, but in the commission of some unlawful act, is guilty of manslaughter, and upon conviction thereof, shall be imprisoned in the state prison not more than twenty-one years nor less than two years.

See sections 1814-15.

An unlawful killing, purposely done in a sudden heat, caused by a sufficient provocation, and without malice, is voluntary manslaughter. Murphy v. State, 31 Ind. 511; Bruner v. State, 58 Ind. 159; Adams v. State, 65 Ind. 565; Norton v. State, 98 Ind. 347. If a killing is done upon a sudden heat, it must be voluntarily done in order to constitute manslaughter. Creek v. State, 24 Ind. 151; Norton v. State, 98 Ind. 347.

An unlawful killing may be manslaughter although a deadly weapon was used. Miller v. State, 37 Ind. 432.

Words only, no matter how abusive, are not a sufficient provocation to reduce murder to manslaughter. Murphy v. State, 31 Ind. 511; Boyle v. State, 105 Ind. 469.

As to what is a sufficient provocation to reduce a killing to manslaughter, see Er parte Moore, 30 Ind. 197; Sawyer v. State, 35 Ind. 80; Ferguson v. State, 49 Ind. 33; Henning v. State, 106 Ind. 386.

If after adequate provocation is given to reduce a killing from murder to manslaughter, sufficient time elapses for deliberation and for passion to subside before the killing, such killing will be murder. Henning v. State, 106 Ind. 386.

Persons may be convicted of aiding and abetting voluntary manslaughter. Goff v. Prime, 26 Ind. 196.

On trial of indictment for murder there may be a conviction for voluntary or involuntary manslaughter. Carrick v. State, 18 Ind. 409; Powers v. State, 87 Ind. 144. Proof of involuntary manslaughter will not sustain an indictment for voluntary manslaughter. Adams v. State, 65 Ind. 565.

As to the requisites of an indictment for voluntary manslaughter, see Reed v. State, 8 Ind. 200; Willey v. State, 46 Ind. 363; Bruner v. State, 58 Ind. 159; State v. Lay, 93 Ind. 341.

Persons who voluntarily commit unlawful acts, which unintentionally, but not necessarily, result in the death of others, are guilty of involuntary manslaughter. Bruner v. Smith, 58 Ind. 159; Adams v. State, 65 Ind. 565; Surber v. State, 99 Ind. 71; State v. Johnson, 102 Ind. 247.

The careless and negligent running of a railroad locomotive into a car and the killing of persons in such car, constitutes involuntary manslaughter. State v. Dorsey, 118 Ind. 167.

As to the requisites of an indictment for involuntary manslaughter, see Willey v. State, 46 Ind. 363.

If the facts stated show an unintentional killing while in the commission of an unlawful act, it need not be in terms stated that the killing was involuntary and unintentional. Brown v. State, 110 Ind. 486.

If death results from an attempt to produce an abortion the prosecution should be under the statute defining that crime, and not for manslaughter. Montgomery v. State, 80 Ind. 338.

1982. (1909.) Assault and battery, with intent, etc.-8. Whoever perpetrates an assault or an assault and battery upon any human being, with intent to commit a felony, shall, upon conviction thereof,