People v. Sheehan, 49 Barb. 217; Kenny v. People, 31 N. Y. 330. Intoxication to disprove deliberation; People v. Batting, 49 How. Pr. 392; People v. Cavanagh, 62 id. 187; People v. Pearce, 2 Edm. S. C. 76; People v. Jones, id. 86; People v. Cassiano, 30 Hun, 388. See McKenna v. People, 81 N. Y. 360; People v. Thompson, 41 id. 1: Keefe v. People, 40 id. 348; People v. Donovan, 3 N. Y. Cr. 79; People v. Walworth, 4 id. 373; People v. Hill, 19 N. Y. State Rep'r, 672. § 185. Id.; duel fought out of this state. - A person who, by previous appointment made within the state, fights a duel without the state, and in so doing inflicts a wound upon his antagonist, whereof the person injured dies; or who engages or participates in such a duel, as a second or assistant to either party, is guilty of murder in the second degree, and may be indicted, tried and convicted in any county of this state. Code Cr. Proc., § 133. See §§ 239, 240, 676, post; § 16, ante. § 186. Punishment of murder in first degree. first degree is punishable by death. See §§ 491-509 of Code of Crim. Proc. Murder in the § 187 Murder in second degree, how punished. second degree is punishable by impris Murder in the by imprisonment for the offender's natural life. § 188. Manslaughter defined. - In a case other than one of those specified in the sections 183, 184 and 185, homicide, not being justifiable or excusable, is manslaughter. People v. Ryan, 2 Wh. Cr. C. 47. Degrees. People v. Pearce, 2 Edm. S. C. 76; People v. Donaldson, id. 78; People v. Crowe, id. 152. What is? People v. McCarthy, 110 N. Y. 316; People v. Beckwith, 103 id. 360; Evans v. People, 49 id. 86; People v. Sullivan, 7 id. 396; People v. Waltz, 50 How. 204; People v. Cole, 2 N. Y. Cr. 113; McCann v. People, 6 Park. 629; People v. Cole, 4 id. 35; People v. Butler, 3 id. 377; People v. Hammill, 2 id 223; People v. Fuller, id. 16; People v. Tannan, 4 id. 514; Wilson v. People, id. 619; Goodwin's case, 6 C. H. Rec. 9; Beal's case, id. 59; Patterson's case, 3 id. 145; People v. Ryan, 2 Whart. C. C. 47; People v. Devine, 1 Edm. Cases, 594; People v. Hill, 19 N. Y. State Rep'r, 672; People v Buddensieck, 103 N. Y. 487; People v. Rego, 36 Hun, 120. § 189. Id.; in the first degree. - Such homicide is manslaughter in the first degree, when committed without a design to effect death, either 1. By a person engaged in committing, or attempting to commit, a misdemeanor, affecting the person or property, either of the person killed, or of another; or 2. In the heat of passion, but in a cruel and unusual manner, or by means of a dangerous weapon. People v. Butler, 3 Park. 377; Darry v. People, 10 N. Y. 120. May convict on indictment for murder. People v. McDonnell, 1 N. Y. Cr. 366; 92 Ν. Υ. 657. Subd. 1. People v. Rector, 19 Wend. 569. Subd. 2. Heat of passion. People v. Sullivan, 7 N. Y. 396; Patterson's case, 3 C H. Rec. 145; People v. Johnson, 1 Park 291; People v. Hammill, 2id, 223; McCann v. People, 6id. 629; People v. Sheriff of Westchester Co., 1 Park. 659; Buel v. People, 78 N. Y. 492, 500; Foster v. People, 50 id. 598. See People v. McKeon, 31 Hun, 449; People v. Rego, 36 id. 129; 3 N. Y. Cr. 276; People v. Cole, 4 Park. 35; People v. McDonald, 49 Hun, 68. § 190. Killing unborn quick child. - The willful killing of an unborn quick child, by any injury committed upon the person of the mother of such child, is manslaughter in the first degree. Evans v. People, 49 N. Ý. 86; Eckhart v. People, 83 id. 462; 38 Am. Rep. 462: Com. v. Parker, 9 Metc. 263; Mitchell v. Com., 78 Ky. 204; 39 Am. Rep. 229; Smith v. State, 33 Me. 48; Mills v. Com., 13 Penn. St. 633. See 294, post. § 191. Id.; by administering drugs, etc.- A person who provides, supplies, or administers to a woman, whether pregnant or not, or who prescribes for, or advises or procures a woman to take any medicine, drug, or substance, or who uses or employs, or causes to be used or employed, any instrument or other means, with intent thereby to procure the miscarriage of a woman, unless the same is necessary to preserve her life, in case the death of the woman, or of any quick child of which she is pregnant, is thereby produced, is guilty of manslaughter in the first degree. See §§ 294, 297, 318, post; Watson v. State (Tex.), 22 Alb. L. J. 318; Lohman v. People, 1 N. Y. 379, 383; Hunt v. People, 3 Park. 569; People v. Stockhan, 1 id, 424; People v. Davis, 56 N. Y. 95, 101; Mongeon v. People, 55 id. 613, 615: S. C., 2 Th. & C. 128; Davis v. People, id. 212; Evans v. People, 49 N. Y. 86, 87. $192. Manslaughter in first degree, how punished. - Manslaughter in the first degree is punishable by imprisonment for a term not exceeding twenty years. §193. Manslaughter in second degree. - Such homicide is manslaughter in the second degree, when committed without a design to effect death, either 1. By a person committing or attempting to commit a trespass, or other invasion of a private right, either of the person killed, or of another, not amounting to a crime; or 2. In the heat of passion, but not by a dangerous weapon or by the use of means either cruel or unusual; or [AMD. CH. 23 of 1887.] 3. By any act, procurement or culpable negligence of any person, which, according to the provisions of this chapter, does not constitute the crime of murder in the first or second degree, nor manslaughter in the first degree. Subd. 2. Wilson v. People, 4 Park. 619. See People v. Johnson, 1 id. 291. Subd. 3. Goodwin's case, 5 C. H. Rec. 52; S. C., 1 Wh. Cr. C. 253; People v. Cole, 4 Park. 35; Randall's case, 5 C. H. Rec. 541; People v. Divine, Edm. S. C. 594; People v. Westchester, 1 Park. 659; People v. Fuller, 2 id. 17. In resisting trespass. Com. v. Drew, 4 Mass. 391; State v. Vance, 17 Ia. 38; State v. Smith, 3 Dev. & Batt. 117. In case of adultery. Sanchez v. People, 22 N. Y. 147; State v. Holme, 54 Mo. 153; State v. John, 8 Ired. 330; Sawyer v. State, 35 Ind. 80; State v. Samuel, 3 Jones, 74; State v. Neville, 6 id. 423; State v. Avery, 64 N. C. 608; People v. Horton, 4 Mich. 67; Lynch v. Com., 77 Penn. St. 505. In mutual combat. State v. Underwood, 57 Mo. 40; U. S. v. Mingo, 2 Curtis C. C. 1. See §§ 195, 202, post. See People v. Buddensieck, 103 N. Y. 487; 5 N. Y. Cr. 69; People v. Melius, 1 id. 39; People v. Rego, 36 Hun, 129; 3 N.Y. Cr. 275; People v. McCarthy, 47 Hun, 491; aff'd, 110 N. Y. 309; People v. McGrath, 47 Hun, 325. § 194. Woman taking drugs, etc. - A woman quick with child, who takes or uses, or submits to the use of any drug, medicine, or substance, or any instrument or other means with intent to produce her own miscarriage, unless the same is necessary to preserve her own life, or that of the child whereof she is pregnant, if the death of such child is thereby produced, is guilty of manslaughter in the second degree. See §§ 294, 295, 318, post. § 195. Negligent use of machinery, etc. -A person who, by any act of negligence or misconduct in a business or employment in which he is engaged, or in the use or management of any machinery, animals, or property of any kind, intrusted to his care, or under his control, or by any unlawful, ful, negligent or reckless act, not specified by or coming co within the foregoing provisions of this chapter, or the provisions of some other statute, occasions the death of a human being, is guilty of manslaughter in the second degree. See § 193, subd. 3, supra; § 196, post; Wilson v. People, 4 Park. 641; Thomas 7. Winchester, 6 N. Y. 397, 409; People v. Austin, 1 Park. 154; People v. Schryver, 42 N. Y. 1, 5; People v. Buddensieck, 103 id. 487. § 196. Owner of animals. If the owner of a mischievous animal, knowing its propensities, willfully suffers it to go at large, or keeps it without ordinary care, and the animal, while so at large, and not confined, kills a human being, who has taken all the precautions which the circumstances permitted, to avoid the animal, the owner is guilty of manslaughter in the second degree. See § 195, supra; § 640, subd. 11, post. § 197. Killing by overloading passenger vessels. - A person navigating a vessel for gain, who willfully or negligently receives so many passengers or such a quantity of other lading on board the vessel, that, by means thereof, the vessel sinks, or is overset or injured, and thereby a human being is drowned, or otherwise killed, is guilty of manslaughter in the second degree. See $ 359, post. § 198. Liability of persons in charge of steamboats. -A person having charge of a steamboat used for the conveyance of passengers, or of a boiler or engine thereof, who, from ignorance, recklessness, 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 the boiler, or other apparatus in which it is generated or contained, or to break any apparatus or machinery connected therewith, whereby the death of a human being is occasioned is guilty of manslaughter in the second degree. See §§ 360, 361, 362, post. § 199. Liability of persons in charge of steam engines. An engineer or other person, having charge of a steam boiler, steam engine, or other apparatus for generating or applying steam, employed in a boat or railway, or in a manufactory, or in any 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 the boiler, engine, or apparatus, or to cause any other accident, whereby the death of a human being is oduced, is guilty of manslaughter in the second degree. See §§ 360, 361, 362, 424, post. § 200. Liability of physicians. -A physician or surgeon, or person practicing as such, who, being in a state of intoxication, without • design to effect death, administers a poisonous drug or medicine, or does any other act as a physician or surgeon, to another person, which produces the death of the latter, is guilty of manslaughter in the second degree. See § 357, post. § 201. Liability of persons making or keeping gunpowder contrary to law. -A person who makes or keeps gunpowder or any other explosive substance within a city or village, in any quantity or manner prohibited by law, or by ordinance of the city or village, if any explosion thereof occurs, whereby the death of a human being is occasioned, is guilty of manslaughter in the second degree. See §§ 389, 636, 645, post. § 202. Punishment of manslaughter in second degree.-Manslaughter in the second degree is punishable by imprisonment for a term not exceeding fifteen years, or by a fine of not more than one thousand dollars, or by both. § 203. Homicide, when excusable.-Homicide is excusable when committed by accident and misfortune, in lawfully correcting a child or servant, or in doing any other lawful act, by lawful means, with ordinary caution, and without any unlawful intent. Correction. State v. Harris, 63 N. C. 1. See § 223, subd. 4, post. Arrest. People v. Carlton, 115 N. Y. 618; 26 N. Y. State Rep'r, 436. § 204. Justifiable homicide. Homicide is justifiable when com. mitted by a public officer, or a person acting by his command and in his aid and assistance, either 1. In obedience to the judgment of a competent court; or 2. Necessarily, in overcoming actual resistance to the execution of the legal process, mandate or order of a court or officer, or in the discharge of a legal duty; or 3. Necessarily, in retaking a prisoner who has committed, or has been arrested for, or convicted of a felony, and who has escaped or has been rescued, or in arresting a person who has committed a felony and is fleeing from justice; or in attempting by lawful ways and means to apprehend a person for a felony actually committed, or in lawfully suppressing a riot, or in lawfully preserving the peace. Of alien enemy, unarmed. State v. Gut, 13 Minn. 341. Subd. 3. Killing prisoner convicted of misdemeanor in escaping, murder. Reneau v. Tenn., 12 Alb. L. J., 57. See People v. Carlton, 115 N. Y. 623; 26 N. Y. State Rep'r, 436; People v. McCarthy, 47 Hun, 491; aff'd, 110 N. Y. 309. § 205. Justifiable homicide. - Homicide is also justifiable when committed, either 1. In the lawful defense of the slayer, or of his or her husband, wife, parent, child, brother, sister, master or servant, or of any other person in his presence or company, when there is reasonable ground to apprehend a design on the part of the person slain to commit a felony, or to do some great personal injury to the slayer, or to any such person, and there is imminent danger of such design being accomplished; or 2. In the actual resistance of an attempt to commit a felony upon the slayer, in his presence, or upon or in a dwelling or other place of abode in which he is. See $26, supra; 223, post. Justification. Apprehension of bodily harm. State v. Cheatwood, 2 Hill (S. C.), 459; Com. v. Webster, 5 Cush. 295; State v. Johnson, 1 Ired. 354; Felix v. State, 18 Ala. 720; State v. Baker, 1 Jones, 267; Evers v. People, 3 Hun, 716; S. C., 63 N. Y. 625. Mere apprehension of danger, without overt act, will not justify. Real v. People, 42 N. Y. 270; S. C., 55 Barb. 551; 8 Abb. Pr. (N. S.) 314. Nor will previous ill treatment. Id. Subd. 1. Stanton's case, 2C. H. Rec. 164. Subd. 2. If circumstances furnish reasonable ground of apprehension, act is justifiable. Shorter v. People, 2 N. Y. 163; Patterson v. People, 46 Barb. 625; People v. Lamb, 54 id. 342; People v. Austin, 1 Park. 154; People v. Cole, 4 id. 35; Pfomer v. People, id. 558; Uhl v. People, 5 id. 410. Attack in self-defense, justifiable only after everything done to avoid necessity. People v. Sullivan, 7 N. Y. 396; People v. Cole, 4 Park. 35; People v. Harper, Edm. S. C. 180; Shorter v. People, 2 Ν. Υ. 193. See People v. Downs, 56 Hun, 11; 29 N. Y. State Rep'r, 121; note in 6 N. Y. Cr. 119; People v. Carlton, 115 N. Y. 623; 26 N. Y. State Rep'r, 436; People v. Druse, 103 N. Y. 655; People v. Walworth, 4 N. Y. Cr. 378; People v. McGrath, 47 Hun, 325; People v. McCarthy, 110 N. Ý. 309; 47 Hun, 491. CHAPTER III. MAIMING. SEC. 206. Maiming defined; how punished. 207. Maiming one's self to escape performance of a duty. 208. Maiming one's self to obtain alms. 209. What injury may constitute maiming. 210. Subsequent recovery of injured person, when a defense. § 206. Maiming defined, how punished. - A person who will. fully, with intent to commit felony, or to injure, disfigure, or disable, inflicts upon the person of another an injury which, 1. Seriously disfigures his person by any mutilation thereof; or 2. Destroys, or disables any member or organ of his body; or 3. Seriously diminishes his physical vigor by the injury of any member or organ; Is guilty of maiming, and is punishable by imprisonment for a term not exceeding fifteen years. The infliction of the injury is presumptive evidence of the intent. Mayhem. Burke v. People, 4 Hun, 481; Godfrey v. People, 63 N. Y. 207. Indictment. Tully v. People, 67 N. Y. 15; Foster v. People, 50 id. 598. § 207. Maiming one's self to escape performance of a duty.- A person who, with design to disable himself from performing a legal duty, existing or anticipated, inflicts upon himself an injury, whereby he is so disabled is guilty of a felony. § 208. Maiming one's self to obtain alms. - A person who inflicts upon himself an injury, such as if inflicted upon another would constitute maiming, with intent to avail himself of such injury, in order to excite sympathy, or to obtain alms, or any charitable relief, is guilty of a felony. § 209. What injury may constitute maiming. - To constitute maiming, it is immaterial by what means or instrument, or in what manner, the injury was inflicted. § 210. Subsequent recovery of injured person, when a defense. -When it appears, upon a trial for maiming another person, that the person has, before the time of trial, so far recovered from the |