By the common law, "murder is when a person of sound mind and discretion, unlawfully killeth any reasonable creature in being, and under the king's peace, with malice aforethought, either express or implied." 27

24 Crosby vs. People, 137 111., 336;

Dunn vs. People, 158 111., 589;

Smith vs. State, 52 Ga., 88. 25 Floyd vs. State, 3 Heisk. (Tenn.), 342.

26 Elliott vs. State, 46 Ga., 159;

Maher vs. People, 10 Mich., 216. 27 Blackstone Com., 195; 3 Greenl.

Ev., Sec. 130; Hale P. C, 425.

Among the statutory definitions are the following: Murder is the unlawful killing of a human being, in the peace of the people, with malice aforethought either expressed or implied.28

Murder committed with deliberately premeditated malice aforethought, or in the commission of or attempt to commit a crime punishable with death or imprisonment for life, or committed with extreme atrocity or cruelty, is murder in the first degree. Murder not appearing to be in the first degree is murder in the second degree.29

"Whoever kills any human being with malice aforethought, either express or implied, is guilty of murder. All murder which is perpetrated by means of poison, or lying in wait, or any other kind of wilful, deliberate and premeditated killing, or which is committed in the perpetration or attempt to perpetrate any arson, rape, robbery, mayhem, or burglary, is murder in the first degree."

Whoever commits murder otherwise than as set forth in the preceding section is guilty of murder in the second degree.30

Every murder which shall be committed by poison, or by lying in wait, or by any other kind of wilful, deliberate and premeditated killing, and every homicide which shall be committed in the perpetration or attempt to perpetrate any arson, rape, robbery, burglary, or mayhem, shall be deemed guilty of murder in the first degree. All other kinds of murder at common law not herein declared to be man-slaughter, or justifiable or excusable homicide, shall be deemed murder in the second degree.31

28 111. Stat. Jackson vs. People, 18

111., 270. 29 Mass. Pub. Stat., 1882 Chap., 202, Secs. 1-6.

30 Iowa Code, 1879, tit. 24, Ch. 2, Sees. 4727, 4729. 31 Mo. R. S. 1899, Ch. 15, §51815, 1816.

The statutes of the different states define murder substantially the same; they contain the same elements though in somewhat different language. And it will be observed that all of the statutory definitions embody the same elements embraced in the common law definition. And it will be further observed that some of the statutes do not define the crime, but merely refer in general terms to the offense as defined by the common law.

The dividing of murder into different degrees is of statutory origin for the purpose of measuring the punishment. The common law does not thus divide this crime.