Richmond enquirer. [volume] (Richmond, Va.) 1815-1867, 1826-10-06

passion, must appear TO have been excited by
some adequate cause, for If there is no apparent
cause for il, very slight one; as some Iitling
provocaton; jury ough, to inter that the appear
ance of heat s passion had been assumed as mere
pretence cover to hide preconceived design. |
Murder on the contrary, Is upon malice prepenss
and iniers the existence OF preconceived design |
to kill, when the mind is not under the Influence
OF heat and passion, no matter how short a time
before this design is entertained. This uakes no
difference. If 1T exists moment only before the
act and when the n,iid is not agi,a,ed by these
disturbing Influences, il is sufficient TO constitute
murder; and the jury may infer the malice ION
the circumstances. II is mistake to suppose that
II is necessary TO prove some former quarrel, of
antecedent grudge If the homicide is committed
under circumstances indicating a depraved and
malignant heart, the jury from these circumstances,
ought, 10 infer the previous evi! design, without a.
ny other proof; otherwise the most airoccus muir
derers might escape their appropriate punishment.
Suppose one man meets another in the street. and
without provccation shoots him down, or two
gentleman of the bar, who have always lived ap-
parent!y on terms OF intimacy, should retire from
the court house, when they have had no quarrel or
dispute, and on reaching the door, one stabbed the
o'her to the heart--it would be murder, and muir
der in the first degree-yet the conimonw ealth
might be able 10 prove anecedent design to kill
wise than what might be inferred from the fact il
self; yet this would be an inference which the Jury
would be bound To make, from every principle Of
law and OF common seuse; for, Judging by the or
uinary operations OF the human mind, no erea,
crime Is committed (except by maniacs) without
| powerful motives, and il tie circumstances shew
that there could have existed no sudden heat and
passion, we can oaly sscribe il to, what The laws
terms, malice prepense. In cases OF murder there
pItHr fka l.
dt'odys erESt, and the jury must be Satisfied of
itS eflSfence, but 1t need not be expressly PROV
because II IL very often presumption of lG1c
which the jury are boundto respect.
The distinction between murder in tie first and
second degree has been taken by an sct of assem-
! bly,; but the construction Of tia, act has never
oeen settled by the hghes. criminal court in the
/ state; yet 1t has been made subject of frequent
conversation among the Judges Of the General
Court, and in particular have anxou,ly CONSIDER
ell II in the case OF Garcia and Cas,;lano, in this
| court and since. What | told the iury in that
case, will not repeat. The words OF our act
make the tU!Ju, deliberate and premeGitated
killing OF another, murder; for as TO the previous
part OF the act, i, has bearing upon the case at
br have always believed that the terms &C de-
ii.era;e and premeditated'' have no greater force
than The malice prCpcnse or MALTA precogitata
I OF the common law. The term preperse means
thought ~ beforehand, aud implies previous deli
beraiIon. The terms IN our act mean no more and
/ were not intended 10 exclude from the highest
punishment, tho'e acts of homicide comu tilted with
out Provocation and without heat or passion, from
"hirh lie common idto wisely infers malice pre-
psaSe; but the killing must be lci,fuR, except in
lie perfeuaiion, or attempt to perpe'rate any ar
son, rape, robbery, or burglary, which would be
murder In the first degree. even excluding the in
tehioh; but IN other homiciGes, the intention to
XII must he satisfactorily proved in order to con-
situte murder in the first degree because cur law
uses The term '' wiGl; and this makes an impor-
tant difference between murder in the first and Sc
c"hd degree. 1t excludes from murder in the frs,
asbree' all those cases OF constructive murder
mentioned IN the English bcoks-as for example.
tue case Of man shooting at a tame fowl, with
Intent to steal IL; I that OF one nesgently throw
ing tile from house into street, where he
KNOWS many persons are passing and in each case
committing homicide. These and similar cases are
pnnlshed caritally in England, bit would only be
murder IN the second degree by or law But
none OF these distinctions apply to the case at bar
II 'ne jury believe he evidence, il is either murder
III Inc fHst degree or mauslaughter If the Jury
oe'ieveihe 'hiee witnesses who were present, and
that lie killing was without previous quarrel. or
p'oVocation, II Is murder in the first degree, be-
cause they ought TO infer the deliberate aud pseme-
di;ated design. But If the other testimony saisfie.
! them That there had been previous quarrel, and
sufficient prosocaou, to excite hea: aid passion i,
l. only manslaughttr. As to .HitcheU's case (ri.
ted Ivy tie prisoners cornseD ii does not contiici
with these principles. That was clearly a. cas-. of
nan'i'uShter, and 1t is matter OF surprise that il
should lave been adjourned TO the General Court
upon adonbt OF lis amounting 20 murder. In that
case the deceased had twice inieriered between
drunken man and his wife; two scui.ies had ensued
- IN the last OF which tie prisoner had fallen O
yer stool, and hut his face, 30 that the blood
lowed, tire deceased ran ont OF the house, aud the
prisoner immediately snaiched gun which Beck
'sh h,u loaded and which the jury would not end
that the prisoner fneir to be loaded. and fred
upon the deceased All this happened in less
'nan aqnaTttr OF an hour. In i:gt case there were
circumstances from which tie Jury ought to have
inferred sudden heat and passion, and there were
none from which they could properly infer malice.
! earnestly desire the jury discard al pIeiu.
dice from their mind. and lean towards The pr-
soner, and to punishment less.sevefe than that of
death, II they eTtaIn reasonable dou. as IN the
law, or the evidence
Tie jury bad retired about fifteen minutes. when
'ney returned into ccGI. and asked Inc Judge ,yhe-
heT 'hey bad understood him In say they were no,
al liberty TO ind the prisoner guilty Of murder in the
second degree! The Judge said tina, their po,ce n
! nna sufn verde. was undoubied lie lad ONLY
fau 'hI' mere appear ed to him no. hug in tie evil
'ence (admii'ins 1t 10 be true) which constituted
=" '' 'e'"hu usStee; but they were judges
OF The law and fact, and nigh, render any ve,dict
they thought right
About hve minutes afterwards, the irlry returned
wr'ha verdict, finding the prisoner guilty Of rnur-
der In the second degree, and sentencing him 10
confinement IN the Peniien,isry Of EIGHTEEN
| YEARS. -1---'
Alter The verdict was recorded the Judge obser-
we'd 10 The jury that If there was any mercy in
sending man 10 the penilentiary for eighteen wear.
! inslesd nf hanrine him lhar IL -. - =.