will; for a gift by words of general description is not to be limited by a subsequent attempt at particular description, unless such appears to be the intention of the testator from the whole will. Allen v. White, 97 Mass. 504. Opinion by NORTON, J.-Martin v. Smith.

STATUTE OF FRAUDS-IMPLIED ASSUMPSIT.-1. It has been settled by numerous decisions that an action will lie to recover back money paid or for services rendered by one party to an agreement which is invalid by the statute of frauds, and which the other party refuses to perform. Kidder v. Hunt, 1 Pick. 328,331; Gillettt v. Maynard, 5 Johns. 85; Gray v. Hill, Ry. & M. 420; King v, Brown, 2 Hill 480; Basford v. Pearson, 9 Allen 387; Williams v. Bemis, 108 Mass. 91. 2. But this rule does not apply if the defendants are ready and willing to carry such an agreement into full effect. The plaintiff can not force the defendants to take their stand upon the statute. Coughlin v. Knowles, 7 Met. 57; Wetherbee v. Potter, 99 Mass. 361. Opinion by AMES, J.-Riley v. Willlams.

MECHANICS' LIEN-MISDESCRIPTION OF PREMISES. -In a petition to enforce a mechanics' lien, it being found as a fact by the court below, that the building erected by the petitioner projected over the line of the respondent's land and upon land of an adjoining proprietor, although the foundation furnished by the respondent was wholly on the respondent's land, and no excuse or explanation being furnished by the petitioner for so ereciting the structure that the respondent is apparently made a continuous trespasser on his neighbor's close, it was held that no lien for the labor or materials furnished in erecting the building could be maintained. The building is not wholly on the land described in the petition, which brings the case within the doctrine of Stevens v. Lincoln, 114 Mass. 476, and Foster v. Cox., 5 C. L. J. 96. Opinion by SOULE, J.McGuinness v. Boyle.

CORRESPONDENCE.

THE TEXAS CATTLE CASE. To the Editor of the Central Law Journal:

In a communication, ante, 217, Mr. M. L. Low is pleased to state that when "G. G. V." presumes that the fact was not brought before the Supreme Court of the United States that all Texas, Mexican and Indian cattle brought into Missouri between the first day of March and December, bring with them a deadly disease, etc., "G. G. V.' is quite right. The decision was reached in profound ignorance of any such all important fact." This is not a fair statement. The point made by "G. G. V." was that the court declared the Missouri statute unconstitutional, because it excluded Texas, Mexican and Indian cattle, "whether diseased or not;" when, in fact, the disease was imparted to our domestic cattle without any symptom of the malady in the animals which introduced it. In other words, it is impossible to discriminate amongst the class of cattle named in this statute, and the legislature was compelled to prohibit all.

The assertion of Mr. M. A. Low that "it was necessarily admitted on the argument that Texas cattle, which had passed the entire previous winter in Iowa or Nebraska, would not impart disease," is, doubtless, correct; but the admission does not seem to have influenced the decision, for no allusion is made to this "all important" fact in the opinion. On the other hand, the entire decision is based upon the proposition that, whilst some of the Texas cattle may be diseased and others not, yet that no distinction is made by the statute.

Nothwithstanding Mr. M. A. Low's ex cathedra exposition, I am not satisfied that the decision is even "ordinarily sound." G. G. V.

QUERIES AND ANSWERS.

[In response to many requests from lawyers in all parts of the country, we have decided to commence again the publication of questions of law sent to us by subscribers. We propose to make this essentially a subscriber's department-i. e., we shall depend, to a large extent, upon them to edit this column. Queries will be numbered consecutively during the year, and correspondents are requested to bear this in mind when sending answers.]

QUERIES.

10. ENTRY ON LAND-WHEN IS PATENT SAID TO BE "ISSUED?"-A makes cash entry of land in 1837. The patent for said land is made out in in 1838, and lies in the General Land Office at Washington until 1878, when on affidavit of loss of duplicate receipt, etc., the patent is transmitted to affiant. When does the patent emanate from the government, and in whom is the legal title from the time the patent is made out until delivered to patentee? Is the patent "issued " when made out, though it may remain in General Land Office 40 years, or when transmitted from the said office and delivered to patentee? McI.

11. ASSIGNEE OF JUDGMENT PRIOR UNREGISTERED DEED OR MORTGAGE.-It is an admitted proposition that an assignee of a chose in action, such as a note, account, mortgage or judgment may recover from the debtor the whole claim without reference to the amount paid for such therefor. But suppose the assignee of a judgment lien, under the registration laws, comes in conflict with a prior unregistered deed or mortgage. He stands in the attitude of a creditor without notice. Now his right is a naked statutory one, which has been acquired by his purchase, and because the prior purchaser failed to put his deed on record. As against the prior equity-unrecordedwhat is he entitled to, the amount he paid or the full amount of the judgment? I.

"F" asks whether or not the Courts of Indiana would give an assignee of a debt a right to collect said debt, where the debt arose between citizens of a sister state, and where as between said citizens said debt could not be collected by the remedy sought to be enforced in home courts? Properly the question is, whether or not said courts would enjoin the exercise of a right by reason of comity existing between sister states? It is settled by recent decisions, that an injunction will lie to restrain a resident plaintiff from prosecuting an action against a resident defendant in the courts of another state, to subject wages exempt from attachment by the laws of resident's state. This is on the sole ground that equity can control the actions of parties within its jurisdiction, and punish a violation of its mandate, but in our mind a court would have to be very ingenious which could give a substantial reason for enjoining a resident plaintiff from prosecuting an action against a non-resident defendant, to subject property to payment of debts which, by the laws of the nonresident's state could not be so subjected. Story on Conflicts, secs. 549, 550 and 551, settles this question in our opinion, in treating of jurisdiction and remedy. If the law of defendants' residence is the rule by which courts are governed, then if "A" gave a note in Iowa under limitation law of ten years, and removed from Iowa to Kansas, leaving property or debts due him in Iowa, and as the statute of limitations in Kansas is five years, then we have the sequence that the holder of said note of five years could not attach "A's " property

in Iowa for said note, because by the law of "A's " domicile (Kansas) no action could have been brought on said note. We think that the true rule is that state laws can have no extra-judicial force, except that which may be, and sometimes is, extended to them by statutes of sister states. A state within whose borders any personalty may be situated, has an entire dominion over it, as much as if it were real estate; and being within the jurisdiction of the courts of a state, it will for all purposes of jurisdiction be treated a real estate. SUBSCRIBER.

BOOK NOTICE.

THE DOCTRINES OF THE LAW OF CONTRACTS in their principal outlines, stated, illustrated and condensed. By JOEL PRENTISS BISHOP. St. Louis: Soule, Thomas & Wentworth; The Central Law Journal. 1878.

The undertaking of reducing all the law of contracts into a treatise of less than 300 pages, excluding index and table of cases, is certainly a formidable one, and is one that, in this day of voluminous writing, might well inspire the ambition of the ablest jurist. From the known ability of the author, and from the plan, scope and design of the present work, combined with such execution as simplifies and elucidates the law in all of its parts, we may confidently predict that it will meet very general favor. The book is about the same size as that of Judge Metcalf, on the same subject; but the methods of the two authors are essentially different. Judge Metcalf enters into a minute and eritical discussion of the various cases to which he refers, while Mr. Bishop makes no criticism of anything but principles, His work also covers a much larger field than that of his predecessor, which deals only with those conditions that are inherent in contracts generally, omitting many special distinctions which are dwelt upon by our present author with a considerable degree of minuteness.

As to how far it is possible to condense the law, and as to how far it ought to be condensed, are questions about which people are likely to differ. There are some who favor a diffuse style without much regard to the subject-matter of the composition; but we believe that lawyers are usually in favor of rather more brevity than is customary. This feeling must necessarily increase and become stronger as the matter of the law accumulates, making day by day a more tremenduous demand on the capabilities of the memory. Epics are out of fashion, and the seven-volume novels of Richardson are washed over by the waters of oblivion. It makes one of the present age tired only to think of them. We incline very much to think that the writer who knows how to condense should be prized in proportion to the amount of time that he saves to us, and that Mr. Bishop is entitled to the thanks of the profession. He intimates that he might have gone farther, for he speaks of having draped his subject with as "thin a gauze of needless words as the public taste would bear." Truly there is no knowing how far the process may be carried. There have been philosophers who have pretended to convey whole theories, embracing the universe, in a word or in a gesture; but we hardly think the present book could be much shortened. We find but very few words that could be cut out without impairing the meaning. Nowhere does he say, "And now, having examined this point, let us proceed to inquire," etc., or any like introduction. What he has to say he says like one who really has something to say, and who talks with a view to communicate ideas. He quotes all the authorities on the points presented, so that the reader can examine the subjects mentioned in their more minute details, if he wishes to do so.

When we began to read this book, we thought it

would be an excellent thing to put in the hands of a student; but as we proceeded we found, without altering our first opinion, that it would be, perhaps, still more useful to the practicing lawyer, who often wishes to find the announcement of some principle, with a list of the cases supporting it, without unnecessary trouble or waste of time. One might very soon familarize himself with a book of this size, so that he would have it all at his fingers' ends; and when he had done so, he would have acquired about all there is of the law of contracts, although, of course of the infinite illustrations and applications of the principles here laid down, very many things, indeed, might be said, which, for the most part, are necessary deductions from propositions which are here stated in all their integrity. The mere case lawyer, who can not grasp an abstraction of any kind, will here find a discipline which may do him good, while the lawyer who perceives beneath all cases only certain truths which they represent, will here discover a supply of palpable and nourishing diet. Our thanks are due to Mr. Bishop. He has been pretty voluminous himself, and this book may make amends for those cases wherein, perhaps, he has used a little more of the gauze referred to than public taste absolutely and unconditionally demanded. U. M. R.

NOTES.

THE study and practice of the law does not necessarily extinguish a literary taste, and the statistics of the public libraries have sometimes been brought forward to prove that lawyers read more novels than do the members of any other of the learned professions. Although the busy practitioner has not usually very much spare time to devote to general reading, it is of the utmost importance that he should keep up with the cursent topics of the day, and to do this he usually makes time. Of all the periodicals among which one must choose for only a student can expect to read all-the International Review (New York: A. S. Barnes & Co.), is, in our opinion, the very best. The March-April number just received is all that could be desired. It contains: Reminiscences of the War, by Hon. Alexander H. Stephens; Elements of National Wealth, by David A. Wells; The Mexico of the Mexicans, by W. T. Pritchard, F. R. S.; Some Noted Women of Bologna, by Madame Valları, of Italy, and Imperial Federalism in Germany, by Baron Von Holtzendorf, of Munich. The Relations of Morality to Religion are discussed by Dr. A. P. Peabody, and Dr. Samuel Osgood concludes his essay on Modern Love. Two papers on the Method of Electing the President, by Judge Cooley, of Michigan, and Hon. Abram. S. Hewitt, of New York, are particularly interesting at this time. Silver in Art, by Edwin C. Taylor, and New York and Its History, by Gen. J. W. De Peyster, are instructive and readable, and the reviews of contemporary American, English, French and German literature are short and pointed. In every respect the present number entitles this magazine to the first place among the many reviews printed in the English language.

MR. JUSTICE CHRISTIAN, of the Irish Court of Appeal, still, from his seat on the bench, belabors the reporters. His philippics against the Council of Law Reporting swell his judgments to four times their ordinary length; he can not announce a decision without referring to the matter; in short, he experiences the same difficulty in keeping the council out of his opinions, as did the simple-minded Mr. Dick in keeping the name of King Charles out of his memorial. In the last case of his we have seen reported-Shearman v. Kelly, 12 Ir. L. T. 98-after discussing the question of law, he remarked that, as it was made certain by the act of 1876 that the question could never arise again,

the decision now made could never be of any value as an authority in future cases, it was utterly worthless as the subject of a report. But, (and here he gets after the reporters), judging from his own experience of the principle of selection which found favor with the present reporters of the "Irish Reports," it was highly probable that it would be amongst the chosen few. He had said some things in the present judgment which were very capable of being misunderstood or perverted. He took that opportunity of repeating in the Court of Appeal the protest and the warning which he had heretofore given in the Court of Appeal in Chancery, and which was this, that anything that might be attributed to him in the "Irish Reports," in that or in any other case, he now, by anticipation, disclaimed and repudiated. That publication held no recognition or authorization from him, and he entirely distrusted its capacity of producing true reports. If he were asked how could he pronounce that condemnation beforehand, he answered that he inferred the future from the past. He had had his experiences, and he was not going to recapitulate them there. He would not dwell now on the performance in the last August number, the case of Lewis v. Lewis, (see 5 Cent. L. J. 517), a false and vituperative libel, which, after it had been publicly denounced and exposed as such, the "Council of Law Reporting" basely persisted in retaining in the hands of their subscribers unwithdrawn and unretracted. Neither should he dwell on the case of Mackey v. The Scottish Widows' Fund Assurance Company, reported in the last January number. There was, in the present month's number, a case of Daniel v. Freeman, which was rather characteristic. It was a short judgment, but it related to a question of importance and difficulty in the law of bankruptcy, and one on which the court reversed a decision of the present master of the rolls. Therefore, it was obviously a case in which it was extremely desirable that the rationale of the decision should have been correctly presented. Well, on a cursory perusal of the report it would be seen to run smoothly enough. The reader would now and then come across a sentence in which he would probably be unable to discover any meaning in particular, but would probably say to himself, "that is because I am not sufficiently master of the facts of the case.' Well he (Lord Justice Christian) knew something of the case. He had the manuscript out of which the judgment was read; he took the trouble of comparing it with the report; and he could state now that at those passages of the manuscript in which the point of the argument was evolved, and for the comprehension of which there was needed something like an intelligent mastery of the case, the report ran often into nonsense, and was a set of words strung together with the outward semblance of coherent sentences, but as regarded any bearing on the question at argument, void of all intelligent purpose, pointless and unmeaning. He did not mean at all to say that the work done on the common law side of the reports would necessarily be so bad. He had as yet hardly had the means of judging. To be sure, his experience had not been favorable. But it would require a rare combination of qualities to produce another Lewis v. Lewis. He hoped that, in future, courts of first instance would be so good as to pay no regard to anything which they should find attributed to him in those "Irish Reports."

The jury system is receiving at present something like a thorough examination, and the public, led by the newspapers, is commencing to ask whether it is really a protection or an evil. We propose in a future issue to consider this important question, but at present wish only to notice a very entertaining discussion of the question of unanimity in jury trials-a question whose discussion will precede that of the advisability of abolishing the system-which we find in the columns of a

contemporary. The rule requiring unanimity we learn is one which came into existence long after trial by jury became an established fact. According to Lambard, in a jury of twelve the verdict of eight was to prevail, and from Bracton and Fleta it would appear that the practice in their time was for the judges, when the jury could not agree, to add to their number until twelve out of the entire number could be got to concur in a verdict. In the time of Edward I, the judge exercised the option of doing this or of compelling the original twelve to agree by starving them into it. Later it would appear that the option was always exercised in one way the latter-and so the practice of starving a jury into unanimity became established. A note to Hale's Pleas of the Crown, vol. 2 p. 296, states that the ancient practice was to take the verdict of the majority. If that was so, one of the amendments most in favor in these days would simply be a return to the ancient practice. This practice of forcing unanimity seems to have commended itself with peculiar favor to the minds of our ancestors. Lord Campbell once said to a jury, on discharging them: "At the assizes, according to the traditional law, a jury which could not agree were to be locked up during the assizes, and then carried in a cart to the borders of the next county, and there shot into a ditch." All this harshness has now, however, been mitigated; and the most that can happen to an obdurate jury now is to be locked up for a few hours.

The arguments which are advanced in favor of changing the rule requiring unanimity in the verdict of a jury are pertinent and forcible. "Why," it is said, "should we require unanimity on the part of juries when in no other tribunal and in no other deliberate asssembly do we require it? Elsewhere the decision of the majority prevails. The questions which juries have to dispose of are of the most doubtful, difficult and complicated nature, questions about which the opinions of men differ considerably. Is it not then contrary to all reason and experience to expect that there can be any real agreement of opinion on the part of twelve men selected at random to decide upon them? Is it not in accordance with all experience and reason that many a unanimous verdict pronounced upon such questions must have been brought about by improper compromise among the jurors of their respective opinions?" The opponents of a change, on the other hand, reject altogether the argument derived from the principle that, in deliberate bodies, the decision of the majority must prevail, on the ground that the questions submitted to them involve matters of opinion rather than of fact. "Every divided verdict," said the commissioners, appointed in England, in 1830, to consider the question, " would be urged on the courts as a ground for a new trial, and might not unreasonably be entertained as such. But perhaps the strongest argument in favor of the system is that by requiring unanimity in the verdict, full and complete discussion is insured. Under the present system the minority, instead of yielding too readily to the view of the majority, and purchasing ease and release from further trouble, are naturally led to resist conclusions from which they differ, and for which their sense of duty makes them unwilling to be answerable. Hence arise full discussion and deliberation, and if the one section of the jury yields to the other, it is only because the prolonged discussion has led to altered convictions. We are, therefore, of the opinion that the present rule requiring the jury to be unanimous should be maintained." These are the pros and cons of the subject, and they are likely to be carefully examined in the near future. On the continent of Europe, and in Scotland, unanimity is not required. The same may be said of the statutes of Texas and Nevada, and a bill is at present before the legislature of New York providing for a like change.

SAINT LOUIS, MARCH 29, 1878.

CURRENT TOPICS.

The Supreme Court of Pennsylvania, in Haskell v Jones, 5 W. N. 165, hold that the statute of that state requiring all negotiable instruments given for patent rights to show on their face that they were so given; making such notes in the hands of any purchaser or holder subject to the same defenses as if in the hands of the original owner, and rendering all persons taking negotiable instruments, knowing their consideration to be the sale of a patent right, which have not the words "given for a patent right" written or printed on their face, liable to prosecution for a misdemeanor, is constitutional, and not in conflict with art. 1, sec. 8, of the Constitution of the United States. The court also hold that the negotiability of a note, in which the required words are not inserted, is in no way affected by the act, but that the innocent holder who takes it before maturity for value. without knowledge or notice of the consideration, takes it, as heretofore, clear of all equities between the original parties. The first point decided by the court is in conflict with the decisions of other courts, in which similar statutes have been declared unconstitutional. See Cranson v. Smith, 5 Cent. L. J. 387; Woolen v. Banker, 6 Am. L. Rec. 236; State v. Peck, 25 Ohio St. 29; 5 Cent. L. J. 377.

In the Supreme Court of the United States in a late case, Union Pacific R. R. v. Stewart, the Chief Justice referred in strong language to the records which come to that court from the circuits." This," he said, after deciding the questions of law in the appeal, "disposes of the case, but we feel it our duty to call attention to the very unsatisfactory manner in which the record has been made up and sent here for the purposes of this appeal. It contains nearly twelve hundred printed pages, and is full of irrelevant matter and useless repetitions. All that is material for the proper presentation of the cause might easily have been put into one-fourth the space. It opens with a copy of the bill, occupying seventeen pages, and immediately following this is a certified Vol. 6.-No. 13.

the service of a subpoena upon one of the corporation defendants, as to which the suit was. subsequently dismissed. The proposition made by Stewart on the 6th of January, 1866, and which is claimed to have been the basis of the contract sued upon, is copied no less than、 ten times, and an affidavit of his, which occu

cupies seventeen pages, is copied three times within a space of seventy pages. These are but specimens of the gross irregularities with which the record abounds. In addition to this the matter is not well arranged and the index is almost useless. We have long suffered from the want of attention of parties or their counsel, and the incapacity, not to say dishonestly, of clerks below in matters of this kind, and deem this a proper occasion for applying the remedy for such neglect or abuse. We are at a loss to determine whether the complainant or defendant is most to blame for the irrelevant matter which has been introduced into this case, but it is clearly the duty of the party who takes an appeal to see to it that the record is properly presented here. Care should be taken that costs are not unnecessarily increased by incorporating useless papers, and that the case is presented fairly and intelligently. While, therefore, the decree in this case will be reversed, each party will be required to pay his own costs in this court. We shall not hesitate to apply the same remedy hereafter in cases where the circumstances are such as to require it."

In an action on a policy of insurance against loss by fire, where the defense is that the property was willfully burned by the insured, it is held by the Court of Errors and Appeals of New Jersey, in the late case of Kane v. The Hibernia Ins. Co, 17 Alb. L. J. 226, that the rule in civil, and not in criminal cases, as to the quantum of proof applies. The doctrine that, in an action on a policy, the defense that the plaintiff had willfully set fire to the premises must be as fully and satisfactorily proved as if the plaintiff were on trial on indictment, originated in the case of Thurtell v. Beaumont, 8 J. B. Moore 612; 1 Bing. 339. This ruling is adopted by Mr. Greenleaf and Mr. Taylor, and is strongly approved by the latter writer, 2 Greenl. Ev., § 418; 1 Taylor's Ev. (5th ed.) 97, a. It is disap

proved by Mr. Wharton, and is vigorously assailed by Mr. May, the author of May on Insurance, in an article in the American Law Review. 2 Whart. Ev., § 1246; 10 Am. Law Rev. 642. The decision on this point, in Thurtell v. Beaumont, was made on an application for a rule, and without much consideration. It has never received approval in the English courts, although, as a rule of evidence, occasions have repeatedly arisen for its adoption and application. The carriers act (11 Geo. IV & 1 Wm. IV, c 68) relieves a carrier from responsibility for the loss of or injury to goods in certain cases, unless the loss or injury arose from the felonious acts of its servants. In G. W. Ry. Co. v. Pimell, 18 C. B. 575; Metcalfe v. L. & B. & S. C. R. R., 4 C. B. (N. S.) 307; Vaughton v. L. & N. W. R. R. Co., L. R. 9 Exch. 93; McQueen v. G. W. R. Co., L. R. 10 Q. B. 569, it was held that this issue was to be determined by the simple weight of evidence, as in other civil cases. In Cooper v. Slade, 6 E. & B. 447, 6 H. L. Cases, 746, the action was for a penalty under the bribery act. Parke, B., charged the jury that if they were satisfied, upon the evidence, that the defendant did, by himself or any other person on his behalf, promise money to the voter to induce him to vote, they should find for the plaintiff. This direction was held correct by the House of Lords. Under the bribery act, any person promising or giving money to a voter, to induce him to vote, was deemed guilty of a misdemeanor, besides rendering himself liable to a penalty.

"In the courts of this country," says Depue, J., who delivered the opinion in the principal case, "the principle adjudged in Thurtell v. Beaumont has received but slender support, except in libel and slander cases. The weight of authority is decidedly against the soundness of the rule there propounded, in its application to actions on policies of insurance, as well as other civil actions, where the issue is such that, for its support, a case must be made such as would afford ground for an indictment. In Gordon v. Parmelee, 15 Gray, 413, it was held that in an action on a promissory note, the defense that the note was obtained by false and fraudulent representations, might be sustained by a preponderance of evidence, as in other civil cases, and that it was not incumbent on the defendant to establish it

A simi

by proof beyond a reasonable doubt, although the defense was based on a charge of fraudulent representations such as might be the subject of a criminal prosecution. In Bradish v. Bliss, 35 Vt. 326, the action was in trespass for burning the plaintiff's building, and the evidence showed that the defendant, if guilty of trespass, had set fire to the building designedly, and was guilty of the crime of arson. The court, nevertheless, held that, it being a civil cause, the issue must be determined by the fair preponderance of evidence. lar decision was made in Munson v. Atwood, 30 Conn. 102, which was an action on a statute which gave the right to recover the treble value of property feloniously taken. In trover, where the evidence was such as to involve a charge of larceny, a direction to the jury that the evidence, to justify a verdict against the defendant, must satisfy them of the truth of the charge beyond a reasonable doubt, was held to be erroneous. Bissel v. West, 35 Ind. 54." In an action on policies of insurance, Thurtell v. Beaumont has been repeatedly repudiated; see Schmidt v. N. Y. U. M. Fire Ins. Co., 1 Gray 529; Scott v. Home Ins. Co., 1 Dill C. C. 105: Huchberger v. Merchants' Fire Ins. Co., 4 Bissell C. C. 265; Washington Ins. Co. v. Wilson, 7 Wis. 169; Blaeser v. M. M. M. Ins. Co, 37 Wis. 31; Rothschild v. Amer. Cent. Ins. Co., 62 Mo. 356; Etna Ins, Co. v. Johnson, 11 Bush. 587; Hoffman v. W. M. & F. Ins. Co., 1 La. Ann. 216; Wightman v. Same, 8 Rob. 442.

THE DEGREES OF MURDER. II. Having arrived at this point of our investigation, it would seem the legal mind should have no trouble in determining what modes of killing constitute murder in the second degree. A definition which would cover all cases in advance might not be easily framed, but it would seem that a judicial investigator should have no trouble, with the facts of a particular case before the mind, in determining what kind of killing it is.

Any murder at common law, not declared by statute to be manslaughter, or justifiable or excusable homicide-not committed by means of poison, nor by lying in wait, nor by any other kind of willful, deliberate and premeditated killing, nor in the perpetration or attempt to perpetrate arson, rape, robbery, burglary,