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distinguishable from murder, have, from the humanity of courts and juries, been reduced to manslaughter. The effect is, the infliction of a punishment, which according to our system, is adapted only to offences of the least depravity. Again, the offence of manslaughter in England, is esteemed in certain cases, quite venial, and the offender is discharged with a fine of one shilling; when for the same offence in this state, he must be sent to the state prison.

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Manslaughter was originally a capital felony; but was subsequently entitled to the benefit of clergy. The effect of this was, to discharge the offender on a slight burning of his hand or check, 4 Black. Com. 370. By the 3d and 4th sections of 19 Geo. III, ch. 74, see Evans' Collection, vol. 6, p. 299, the courts were directed to change this burning to 'a moderate pecuniary fine,' and they were authorized to imprison not exceeding one year. And this is the only punishment in England for manslaughter. In this instance, and in this only, is our code more severe than that of England. The consequence in that country is, that where criminality appears, there is a constant effort to bring the offence within the description of murder, so that the offender shall not escape all punishment. It is obvious therefore that the reasons upon which the courts in that country proceed, are not applicable to this state, and hence a very just doubt arises, whether the rules founded on those reasons, should be deemed law here. These considerations urge the indispensable necessity of an attempt to define, arrange and classify the different grades of manslaughter, and assign to each, the proper punishment. That attempt is made in this Article, and the different grades are presented in connection, in one view, as they are mutually dependent on each other." [S1, 2. Same as enacted.] Original note to subs. 2, 3, 4 of § 2. "See East's Crown Law, ch. 5, 63, 67, 90."

[$ 3, 4. Same as enacted. In sub. 2 of § 3, all after the word "servant," was printed in italic.]

Original note. "The two preceding sections are taken substantially from 4, 5 and 6, of our act concerning murder, 1 R. L. 67. These sections provide that if certain things be found by verdict, the accused shall not forfeit any thing. They are founded upon the English statutes, 6 Ed. I, ch. 9; 24 Hen. VIII, ch. 5. Although benefit of clergy was extended to manslaughter, yet there was a forfeiture of goods and chattels upon conviction, and the English statutes referred to, were passed to enable the accused to sue out a pardon of course. Our statute is wholly disregarded in practice; a special verdict never is found, but the court direct an acquittal by the jury. It is conceived that this practice ought to be expressly sanctioned by law.

"(1) $4, 1 R. L. 67, extended to all felonies,, see East, ch. 5, § 46, (2) part of § 5 and § 6, [should be § 3] qualified by the words in italic, according to the views of most of the writers on the subject, and the express decisions in Massachusetts and New Jersey, see Russell on Crim. 699, 700. (3) § 6, 1 R. L. 68. (4) Ib. § 6. (5) East, ch. 5, § 36, 38, 40, 41. (6) East, ch. 5, § 19, 20, 24, &c. This subdivision is classed by Mr. East among the most mitigated degrees of manslaughter, and the punishment is merely nominal. With the qualifications proposed, it is deemed better classed among excusable homicides."

[§ 5. Same as enacted.] Original note. "In place of the special verdict now required."

[$ 6. Same as enacted, except the words "in cases where such killing would be murder at the common law," inserted by the legislature.] Original note. "Felony will be defined in this chapter, to mean those offences which are punishable by imprisonment in a state prison. Although, therefore, the preceding section is strictly conformable to the terms of the present law, yet those terms would include some offences as felonies, such as petit larceny, which would not be such under the definition proposed. See East, ch. 5, § 31, p. 255."

[S 7. Same as enacted.] Original note. "By the existing law, this is murder; Dyson's case, Russel and Ryan's Criminal Cases, 523. It is conceived, however, that the punishment above proposed, is more appropriate and more likely to be enforced."

[S 8. Same as enacted.] Original note. "The killing of an unborn quick child, by striking the mother, is now only a misdemeanor. Russel 618, and see note to § 10."

[S 11. Same as § 10 R. S.]

Original note. "See East, ch. 5, § 21. This case presents greater difficulty perhaps than any other. The weapon used, or the manner of killing, may indicate a barbarous and ferocious mind, but yet not that design to kill which should mark every case of murder. Courts and juries have fluctuated in classing it as murder or manslaughter; on the one hand, unwilling to suffer such an offender to escape with the slight punishment inflicted in England on manslaughter; and on the other, reluctant to subject him to the punishment of death. As the punishment of this degree will be to some extent discretionary, it is conceived that it affords a medium between the two extremes. By confining it to cases where the killing is not declared excusable, the important feature is preserved of its being done without sufficient legal provocation. Such a killing, as defined in this section, but with a dangerous weapon, it is conceived, furnishes a still lower grade, manifestly differing from that committed in a cruel and barbarous manner; and if committed with a weapon not dangerous, furnishes still another grade of manslaughter. Both these will be provided for in subsequent sections."

[S 12 as reported, substantially like § 14 R. S.; the word "wilfully," inserted by the legislature before "suffer;" and the words "or shall keep it without ordinary care," substituted by the legislature for “or to lie in any place without being sufficiently secured."]

Original note. "See East, ch. 5, § 39. There appears to be conflicting opinions respecting this case. It is conceived proper to declare expressly the grade of punishment which should be assigned to it."

[S 13. Same as § 11 R. S.] Original note. "East, ch. 5, § 48. If the killing be voluntary in such case, or done with premeditated design, it would be murder. Although an involuntary act, it is still an offence."

Original note. "See East, ch. 5, § 21,

[S 14. Same as § 12 R. S.] and note to § 11, of this Title." [S 15. Same as § 13 R. S.] Original note. "See 1 East, 255, 257. If committed in the perpetration of a felony, this would be murder;

if, in perpetrating any other criminal act, manslaughter in the first degree."

IS 16. Same as § 15 R. S., except the words "wilfully or negligently," inserted by the legislature.] Original note. "New; similar to the

statute, 10 Geo. II, ch. 31, § 8, East, 264.”

[S 17. Same as § 16 R. S.] Original note. "New."

[S 18. Same as § 17 R. S. except the words "without a design to effect death," inserted by the legislature.] Original note. "New; recent cases indicate the necessity of some such provision."

[S 20. Same as § 18 R. S.] Original note. "See note to § 11, and East, 237, 239, § 23.

[S 22. Same as § 19 R. S.] Original note. "Intended to guard against all danger of omission of any case, and to include some that are anomalous."

"ARTICLE II.—Of rape, maiming, kidnapping, und other offences against the person, not herein before enumerated."

[S 25. Same as § 22 R. S. except the age reported "twelve" in sub. 1, and "ten years" substituted for imprisonment for life.]

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Original note. "§ 1, 1 R. L. 156, 408, varied by substituting twelve years for ten, as the age under which consent cannot be given. It is believed that this was the ancient law of England; see East, ch. 10, $2. By $ 2, of Ch. 8, 2d Part R. S. the age of consent to a marriage, by a female, is fixed at fourteen.”

[S 26 as reported, corresponding to § 23 R. S. materially varied.]

case.

Original note. "The offence committed under the preceding circumstances, probably would not be rape; and yet the guilt of the offender, and the injury to the sufferer, are as great in this, as in any other The provision is borrowed from Mr. Livingston's Code, p. 110." [S 27. Same as § 24 R. S. except "not less than ten years,” substituted for "imprisonment for life."] Original note. "§ 2, 1 R. L. 156, made more definite by confining it to actual compulsion."

[$ 28. Same as § 25 R. S.] Original note. "New; deemed necessary to carry out the preceding provision, as the offence may be intercepted on the point of perpetration."

IS 30. Same as § 26 R. S.] Original note. "New." [S 31. Same as § 27 R. S.]

Original note. "1 R. L. 168, slightly varied by the words in italic. The expression in the statute, with intent to 'maim or disfigure in any the manners aforesaid,' are merely equivalent to the terms already used, premeditated design, see East, ch. 7, § 6, p. 399, and are therefore omitted. The offence is now punishable absolutely, by imprisonment for life, 1 R. L. 408, § 3. Its severity frequently defeats convictions, while the offence itself is capable of every shade of atrocity. A large discretion is therefore given."

[$ 32. Same as § 28 R. S. except "ten years,” substituted for, “fourteen years."] Original note. "Act of 1827, p. 348, combined with part of act of 1817, p. 143, § 29.

[$ 33, 34. Same as 29, 30 R. S.] Original note to § 33. "§ 1 of act of 1827, p. 348." To § 34. "§ 2 of same act varied, in throwing the burden of proving a voluntary consent upon the defendants.

[S 35. Same as § 31 R. S.]

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Original note. "§ 3 of same act, varied by allowing greater discretion in the extent of the punishment of the offence. Very slight acts are sufficient to constitute an accessary after the fact; and from this circumstance it has probably arisen, that the legislature have provided a punishment not exceeding three years' imprisonment, upon the conviction of any accessary after the fact, to any felony whatsoever. See § 13, 1 R. L., 410.

[$ 39. Same as § 35 R. S.] Original note. "New; unfortunately proved by some recent instances to be very necessary."

[S 40. Same as § 36 R. S. except "more than" substituted for "less than," in the last line.]

Original note. "This is supposed to be a very distinct offence from an assault by ordinary means, with intent to commit a felony; see 43 Geo. III, ch. 58, 5 Evans, 206. The robbery, rape, &c., may not be actually consummated, and yet the moral offence, so far as the offender is concerned, may be complete in all its parts. A bill lately introduced into the English parliament by the Marquis of Lansdown, proposes to make such offences punishable in the same manner as if the original intent was accomplished. But it is conceived that an opportunity of repentance should be afforded, to prevent the final execution of the criminal act, by providing a mitigated punishment for the attempt. This therefore has appeared to be a case, where a large discretion may be safely vested in the courts."

[S 41. Same as enacted § 37 R. S.]

Original note. "The punishment varied so as to vest a discretion to imprison for life or any shorter period. Such an offence exhibits more deliberate malignity than any involuntary manslaughter. The words, and which shall have been actually taken by such being,' are supposed to be necessary to express clearly the intent of the original act."

[S 42. Same as § 38 R. S. except "wilfully," inserted by the legislature, and "ten years" substituted for "five years."] Original note. "New; this offence is now a mere misdemeanor."

"TITLE III.-Of offences against property, punishable by imprisonment in a state prison."

[S 1. Same as enacted.]

"ARTICLE I.—Of Arson.”

Original note. "By the common law and our own statutes, there does not appear to be any difference made in the punishment of this offence, whether committed in the day or in the night. And yet it is conceived there is a manifest distinction, as well in the character of the offence as in the danger to the community. This distinction has been recognized by the English statutes of 22 and 23 Ch. II, Ch. 7."

[S 2. Same as enacted, except the words "situated in a city or other populous place," which were reported after "building," stricken out by the legislature.]

Original note. "This offence, which is now of the same grade with grand larceny, in respect to punishment, is so atrocious in character and so dangerous to the community, that nothing but an invincible reluctance to increase the number of capital offences, has prevented

the Revisers from placing it in that class. It is proposed, however, to subject it to the discretion of the court, as to the extent of imprisonment. The section as drawn, will include the case of a man setting fire to his own house."

[$ 3. Same as enacted.] Original note. "Founded upon the distinction mentioned in a preceding note."

[S4, 5. Same as enacted; re-printed here on account of the references in the notes.]

"S5. Every person who shall wilfully burn any building, ship or vessel, or any goods, wares, merchandize or other chattel, which shall be at the time insured against loss or damage by fire; (1) with intent to prejudice such insurer, whether the same be the property of such person or of any other, (2) shall upon conviction be adjudged guilty of arson in the third degree."

Original note. "Laws of 1815, p. 129, varied by the insertion of the words in italic. (1) This is according to the supposed intent of the statute. (2) This is conformable to the construction uniformly given. Varied also, in mitigating the punishment. No reason is perceived for visiting with the utmost severity of the law an act calculated to injure an insurance company, when the same act, intended for the ruin of an individual, receives a punishment so much more lenient. It is proposed to put them on the same footing.

[S 6. Same as enacted.] Original note. "This refers to the offences in § 4."

[S 7. Same as enacted, except the words "not being the property of such person," inserted by the legislature.] Original note. "These are not provided for in the present statute, except bridges, by the act of 1827, p. 244."

[S8. Same as enacted, except the words "belonging to another," inserted by the legislature after the words "fruit trees."] Original note. "The part relative to woods, new; not provided for in the present statutes; except the firing of woods is now a misdemeanor; Laws of 1817, p. 118."

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[$ 9. Same as enacted, except "ten years," twice substituted for fourteen years."]

Original note. This conforms to the present law, in a majority of the cases. Those cases not included in the third degree, are such as from their atrocity and their danger to the community, seem to require a greater punishment, or those which, from the reverse of the same circumstances, are not deserving of the greatest severity."

"ARTICLE II.-Of Burglary."

[S 10. Same as enacted.]

Original note. "The offence of burglary partakes of different degrees of criminality; 1. By its being committed when some person is within the house, whose life may be jeoparded. 2. By the mauner of entering. 3. The breaking out and the breaking of an inside door of a room, closet, &c. These are all technically burglaries, but manifestly different offences; see East, 464. This crime, without any reference to either of these circumstances, is now punished absolutely by imprisonment for life. An effort is made in this Article, to class these different degrees according to their atrocity.

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