The Kalida venture. [volume] (Kalida, Ohio) 1841-1865, 1849-08-07


vial part. But whom the two things
concur---.when a pistol, gun, asword,
knife. or any other sharp Instrument calcu-
lated 10 take life, heavy bludgeon 70
IS used, and wound inflicted, inflicted
on q vital pari, and death ensues, we are
compelled 10 infer an Intentional killing
in the language oi the Statute. And
such is the legal principle, When a
weapon calculated 10 produce death is
used, and the blow is inflicted on vital
part, and death ensues, the intention 10
destroy is presumed, and il Is for the de-
fendent 10 rebut the presumption. me
Killer must also be of sound mind, for an
insane person, on idiot, is supposed TO be
incapable Of committing crime.
In the third place, TO constitute murder IN
the FIST degree, the act shall Dc OF De-
liberate and premeditated malice. 10
explain the meaning Of the terms salts
factorily it is only necessary 70 give the
jury the legal definition Of the word
malice. Deliberate and preneditated,
merely mean That the malice must exist
in the mind previous to the act Of killing,
and il does not matter whether this pre-
meditation and deliberation exist for
week or day or for moment before the
act is committed. L must however
prscedc the act. Malice then. ~ the
sense in which il is employed in the
Statute, has very different meaning
from that which it bears in popular opin-
ion, and this the jury should clearly un-
derstand. II is generally supposed that
Malice means an i'll feeling or malevo-
lence, or grudge to the particular indi.
vidual. Not so. The term is legal
one, and is defined in the books to be
nan evil design in general, the dictate OF
awicked, depraved and malignant heart
1t is not necessary then that the mallgni-
ty, or malice, should be confined TO q
particular i'll will towards the person in
iured. 1t is evidenced by every act
which springs from wicked and cor
rupt motive attended by circumstances
indicating heart regardless Of the So
cial duties and bent on mischief Malice
lis of two kinds, implied and cypress,
Malice is implied where the killing IS
sudden without any or great propocdf'on.
Express Malice is evidenced by the cir-
cumstances preceding and attending ire
transaction as by threats, menaces, by
concealed schemes, &C., or by an unu-
sual degree Of cruelty attending the act.
With regard TO presumption Of malice in
charge ofmurder, ii is laid down in the
books that "the fact of killing being
first proved, all the circumstances OF ac-
cident, necessity, or in6rmity are 10 be
satisfactorily proved by the prisoner, UNI
less they arise out Of the evidence pro-
duced against him, for the law presumes
the tact 10 be founded in malice, until
the contrary appears" Il has been de-
c;ded by the supreme Court OF Ohio,
on Circuit, that whore malice Is
not proven, but only presumed. from the
mere fact Of killing, unexplained, the
liury should not convict, Of the highest
offence, but Of murder in the I'd degree;
and we have no disposition to quarrel
with the decision or dissent from il. 1t
is humane decision and founded ia
reason. If the jury find then that Geo.
Busick intentionally killed Samuel Ham
lIlon, from the dictates either Of ma
lgnant feeling towards him, or Of the
. general malice which the court have
taken pains to explain to the jury,and. that
this malice was deliberate g. preceded the
act Of killing, though but. fol. "a moment, and
\ ,he said Geo. Busick was at the time Of
sound mind, this part Of the case is made
out. and it only remains for the jury tt
determine the participation Of the prison
er at the bar, in aiding and abetting hi
brother in the commission Of this offence
If the jury do not find however, tina
Geo. Busick killed Hamilton unlawful,
and inten ,ionally, or with deliberate ant
preneditated malice, they will thel
enquire further whether he is guilty Q
!, murder in the Cd degree.
Murder in the second degree IL tn
, Unlawful, Intentional and malicious kill
/, ing Of another, without premeditatiol
land deliberation. Malice, it will be OBJ
served, is an essential ingredient in tn
& offence Of murder in the second degre
as well as murder in the first degree
# Ii must also he purposely, but there nee
. not be premedita tion and deliberation.-
y The distin ction between the two offence
! we conc eive 10 be this In murder
: the first degree, malice precedes the &C
E whereas, in murder in the second degree
ii accompanies the act Of killing-that il
g the malicious purpose is formed the sam
s. moment that the blow is ssiruck.
te Manslaughter, as defined in the Sta
10 ute is:
le That if any person shall unlawfully ki
= another without malice, either upon su
den quarrel or unintentionally, while u
~ slayeris in the commission Of ssme unlawi
ne act; every such person shall be deemed gull
d Of granddaughter t
es One word, gentlemsn, on the su
,K Iiect Of propocation. You will have cor
M pretended, probably from the remarl
ad already made, that it does not necessal
n II follow that provocation will ledu'
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