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Act eminently

$ 245. Homicide perpetrated by an act eminently dangerous 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.

and evincing a depraved mind.

Duel fought out of this state

Punishment of murder.

Manslaughter in first

degree defined.

Intended to correct the rules deemed incorrect, laid down in People v. Sheriff of Westchester Co., 1 Park. Cr., 659; Darry v. People, 10 N. Y. (6 Seld.), 120.

S246. Every person who, by previous appointment within this state, fights a duel without this 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.

See 2 Rev. Stat., 657, § 6.

S247. Every person convicted of murder shall suffer death for the same.

Corresponds with 2 Rev. Stat., 656, § 1. See notes to sections 60 and 241, above.

S248. Homicide is manslaughter in the first degree in the following cases:

1. When perpetrated without a design to effect death by a person while engaged in the commission of a misdemeanor;

2. 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;

3. When perpetrated unnecessarily either while resisting an attempt by the person killed to commit a crime, or after such attempt shall have failed.

Subd. 1. This clause is intended to embody the provisions of 2 Rev. Stat., 661, § 6.

The words "by the act, procurement or culpable negligence of another," used in. that statute, are omitted. They are not found in the corresponding clause in the definition of murder. (2 Rev. Stat., 657, § 5, subd. 3.

See also section 241, supra) If the accused was com-
mitting felony when he perpetrated the homicide, it is
murder, though unintentional. If he was committing a
misdemeanor, the homicide is manslaughter in the first
degree. The sections embodying these two ideas should
correspond in language. Homicide by culpable negli-
gence is made manslaughter in the second degree, by
section 252 of this Code.

The word "misdemeanor" is substituted for the phrase
“crime or misdemeanor, not amounting to felony," that
being the exact meaning expressed by the term misde-
meanor under the definition already given in this Code.

The restriction "in cases where such killing would be murder at the common law," is omitted because it is deemed essential to the usefulness of the Code that its definitions should not be dependent upon a recourse to the common law to render them intelligible.

Subd. 2. This provision embodies two sections of the existing law; 2 Rev. Stat., 661, §§ 10 and 12. Both species of homicide there respectively defined as manslaughter in the second and third degrees, are here brought within the first degree, in harmony with the design of the Commissioners to simplify the law of manslaughter by reducing the number of its degrees.

Subd. 3. This embodies the provision of 2 Rev. Stat., 661, § 11. The phrase "to commit a crime" is substituted for "to commit any felony or to do any unlawful act," because the words "unlawful act" might be deemed to embrace trespass; yet the case of homicide of a person committing a trespass, is specifically declared manslaughter in the third degree by 2 Rev. Stat., 661, § 13.

unborn

quick child person of

by injury to

$ 249. The willful killing of an unborn quick child Killing by any injury committed upon the person of the mother of such child, and not prohibited in the next following section, is manslaughter in the first degree.

Substituted for 2 Rev. Stat., 661, § 8, the language of which is obscure. Whether an injury to the mother resulting in death would be murder depends wholly on the intent, and not at all on the description of the injury.

mother.

istering

S 250. Every person who administers to any woman By adminpregnant with a quick child, or who prescribes for drugs, &c. such woman, or advises or procures any such woman to take any medicine, drug or substance whatever, or who uses or employs any instrument or other means with intent thereby to destroy such child, unless the same shall have been necessary to pre

Punish

ment of

serve the life of such mother, is guilty, in case the death of the child or of the mother is thereby produced, of manslaughter in the first degree.

Laws of 1846, ch. 22, § 1. In the final report this section and the preceding may perhaps be embodied in one.

S 251. Every person guilty of manslaughter in the manslaugh first degree is punishable by imprisonment in a state prison for not less than four years.

ter in first

degree.

Manslaughter in

second degree defined

Liability of owner of mischievous animal.

Liability of persons

vessels.

Founded upon Rev. Stat., 662, § 20; but modified to correspond with the reduction in the number of degrees in manslaughter, introduced by the preceding provisions.

S252. Every killing of one human being by the act, procurement or culpable negligence of another, which under the provisions of this chapter is not murder, nor manslaughter in the first degree, nor excusable nor justifiable homicide, is manslaughter in the second degree.

$253. If the owner of a mischievous animal, knowing its propensities, willfully suffers it to go at large, or keeps it without ordinary care, and such animal, while so at large or not confined, kills any human being who has taken all the precautions which the circumstances permitted, to avoid such animal, the owner is deemed guilty of manslaughter in the second degree.

See 2 Rev. Stat., 662, § 14.

S 254. Every person navigating any vessel for navigating gain, who willfully or negligently receives so many passengers or such a quantity of other lading on board such vessel, that by means thereof such vessel sinks or is overset or injured, and thereby any human being is drowned or otherwise killed, is guilty of manslaughter in the second degree.

Liability of

persons in charge of steamboats.

See 2 Rev. Stut., 662, § 15.

$255. Every captain or other person having charge of any steamboat used for the conveyance of passen

gers, or of the boilers and engines thereof, who, from ignorance or gross neglect, or for the purpose of excelling any other boat in speed, creates, or allows to be created, such an undue quantity of steam as to burst or break the boiler or other apparatus in which it shall be generated, or any apparatus or machinery connected therewith, by which bursting or breaking any person is killed, is deemed guilty of manslaughter in the second degree.

See 2 Rev. Stat., 662, § 16.

persons in

steam en

S 256. Every engineer, or other person having Liability of charge of any steam boiler, steam engine or other charge of apparatus for generating or employing steam, em- gines. ployed in any manufactory, railway or other mechanical works, who willfully or from ignorance or gross neglect creates, or allows to be created, such an undue quantity of steam as to burst or break the boiler, engine or apparatus, or to cause any other accident whereby the death of a human being is produced, is guilty of manslaughter in the second degree.

physicians.

-S257. Every physician who, being in a state of Liability of intoxication, without a design to effect death, administers any poison drug or medicine, or does any other act as such physician, to another person, which produces the death of such other, is guilty of manslaughter in the second degree.

See 2 Rev. Stat., 442, § 17.

persons

keeping

contrary to

law.

S258. Every person guilty of making or keeping Liability of gunpowder or saltpetre within any city or village, in making or any quantity or manner such as is prohibited by law gunpowder or by any ordinance of said city or village, in consequence whereof any explosion occurs whereby any human being is killed, is guilty of manslaughter in the second degree.

See Laws of 1846, ch. 291, § 19.

ment of

$259. Every person guilty of manslaughter in the Punishsecond degree is punishable by imprisonment in a manslaugh

ter in second

degree.

Excusable homicide defined.

Justifiable homicide by public officers.

Justifiable homicide

by other persons.

state prison not more than four years, and not less than two years, or by imprisonment in a county jail not exceeding one year, or by a fine not exceeding one thousand dollars, or by both such fine and imprisonment.

Founded on 2 Rec. Stat., 662, § 20; but modified to correspond with the reduction in the number of degrees in manslaughter, introduced by the preceding provisions.

$260. Homicide is excusable in the following cases: 1. When committed by accident and misfortune, in lawfully correcting a child or servant, or in doing any other lawful act, by lawful means, with usual and ordinary caution, and without any unlawful intent;

2. When committed by accident and misfortune in the heat of passion, upon any sudden and sufficient provocation, or upon a sudden combat; provided that no undue advantage is taken, nor any dangerous weapon used, and that the killing is not done in a cruel or unusual manner.

2 Rev. Stat., 660, § 4. The verbal alterations introduced are intended only to attain greater clearness of expression; and not to introduce any substantive changes.

S 261. Homicide is justifiable when committed by public officers and those acting by their command in their aid and assistance, either:

1. In obedience to any judgment of a competent court; or,

2. When necessarily committed in overcoming actual resistance to the execution of some legal process, or to the discharge of any other legal duty; or,

3. When necessarily committed in retaking felons who have been rescued, or who have escaped, or when necessarily committed in arresting felons fleeing from justice.

$262. Homicide is also justifiable when committed by any person in either of the following cases:

1. When resisting any attempt to murder such

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