Indiana State sentinel. [volume] (Indianapolis) 1841-1853, 1849-11-29
Judge Cushing's Charge,

In The case of the State against Merritt Young.
GEsrLEmEN THE jury The indictment has
been read you, the evidence produced and the
elaboratey argued and is now the duty OF the Court
to instruct you IN the principles and rules of law bv
which you ought TO be governed in considering the evil
dence and finding verdict
have examined all the authorities which have been
cited with careful attention, and with anxiuus desire
to instruct you plainly, without making any mistake
BY the Constitution of Indiana, you the Judges Of
the law well as Of the fact; but you under
obligation disregard the law laid down by the
Court the responsibility Of stating il you would
have been imposed upon the Court
The indictment charges, in substance that the defen
dant, Merritt Young, on the nineteenth day Of March
last in the county Marion ieIoniousy, purposey and
nf deliberate aud premedated malce murdered Israel
Phillips, by then and there, purposey and u deliberate
premedaied malice stabbng him the left side of
his breast with knife.
The indictment describes the knife the wound and the
manner Of inficting il, with unnecessary particularly
The value of the knife quite immateria, and it
not necessary TO state in which he held knife
the length the depth OF the wound and it is
necessary that these things should be strictly proved
as they described.
The indictment in its terms contains charge of muir
der in the FIRST degree which includes a charge Of murder
in the second degree and also charge OF mansaughter
that if the law and the evidence you may,
upon this Indictment find the defendant guilty either of
murder in the first degree of murder in the second
degree of manslaugher.
These crimes defined in the SD chapter the Re-
ysed Statutes of this Saie sections 2, s. and O. pages
960-1. ''lf any person of sound memory and dscre-
ton shall purposey and of deliberate and
malce or in the preparation of or attempt to pePe'rae
any rape arson obbing burglary by administering
poison causing the TO be done, kill any
Bile being and under the peace Of this State,
such person shall be deemed guilty Of murder in the sst
degree, and upon due conviction thereof shall suffer
DEATH"
"If any person shall purposeIy and mnlicousy, bu,
without delberation and premeditaiion kill any human
being every such person shall be deemed guilty Of MUIR
der in the second Degree and conviction thereof shall
be imprisoned in the State Prison and kept hard labor
during life
SO If any person shall unlawfuy kill any human be-
ing without malice express implied, either voluntarily
upon sudden heat individually, but in the commits
sion OF some unlawful Act every such person shall be
deemed guilty of manslaughter, aud upon conviction
thereof shall be imprisoned ia the Stats Prison and kept
Mt hard labor not more than iwentyone years nor less
/ than two years
To constitute murder in ths first degree, the killing
must be done with formed design to KILL design not
formed and executed in haste but formed with delbera
ton and premedaiion, before the mortal blow is given
Every design to KILL formed before the mortal blow Is
given, necessarily premedtaed, however quickly Is
executed but design kill, formed in haste before
the mortal blow aud quickly executed is not deliberate
design.
To constitute murder in the second degree the killing
be done purposely and macously, but without de-
Liberation nnd Premeditaton.
According the distIDc ton which have attempted
TO explain between elaboration aud generalization, II the
killing is done purposely and maciously, but without
delberaon, il is murder in the second degree, whether
-
To constitute manslaugher, the killing must be done
without malice express implied either voluntarily
upon sudden heat, inyolunarily but in the commits
sion of some unlawful act.
Express malice is where one person kills another with
sedate, deliberate mind and formed design, such formed
design being evidenced by external circumstances dis
covering the inward intention, such lying watt pre-
vious threats, former grudges, &c.
Malice is implied by law from any deliberate conduct
committed by person against another person, how
The degrees of murder and manslaughter de-
fined above, embrace every of homicide which is
, not either excusabe or Unsuitable.
Section lO7 chapter 3d. page $50, of the Revised Sta
tutes provides that "every person not being traveller
who shall carry any dirk, pistol, sword cane other
dangerous weapon, concealed, shall upon conviction
thereof be fined in any not exceeding hundred
dollars"
IL is a violation of this statute to carry a dangerous
weapon concealed, for the purpose of sedsence
II man thinks proper TO do he may for such purpose
carry dirk or pistol, or other dangerous weapon open
y, in his hand otherwise, where be seen, but
Q not concealed.
IL general rule that all homicide presumed he
contrary appears from circumstances of alienation,
justification and il incumbent the defen-
dant to make out such circumstances the satisfaction O
the jury unless they arise out Of the evidence produc
If seeks another and enters into fight with him
with the purpose under petence of fighting TO stab him
il homicide ensue will be clearly murder in the assa
ant, no matter what Provocston apparently then
given, how high the assaants passion during the
: combat, for the malice is express.
If person being possession of deadly weapon
ter into combat with another, intending the time to
avail himself of il and in the of the contest
> tually uses il and kills The other. will be murder; but
II lac did not intend when he began the contest
but used it in the heat o passion consequence Of
attack made upon him, 1t will be mansaughler
II he use u TO protect his life, to Protec, him.
self from such bodily harm would give him a
i bic apprehension that his Iiia was in immediate dang
having other of escape, and retreaing far
- he can, il will be jusifiable homicide.
II one man kills another in mere self-deience, II
d jus6able.
Before a person avail himself Of the defence tina
he used weapon in defence Of his life, ne satisfy
The jury that the defence necessary tina. he did al
he could to avoid and that necessary protec
his life, protect himself from such serious bodi
ly harm would give HIM reasonable apprehension
that his life in immediate danger In such case 1T h
used the weapon, having other means of resistance
and means OF escape and If he rereaed far as hs
could, he would be justified
II person, while carrying dangerous weapon con
ceaed about his person, into contest quarre
with another and by using language Of defiance 9th
erwise provokes the other to attack him. and during thu
struggle ssbs and kills the other he is free iron
blame. III IS not OF selfdefence, howeve
imminent and urgent his danger at the moment the faa
stab given aud the utmost effect that such state
circumstances have in his favor, to alleviate tn,
killing from murder manssughter
shall undertake to state all the evidence in detail
but present such general view of il may to IL
q nsiraie some of The general principles Of law which
have laid down and assist you apply them correctly.
defendant Merritt Young The night Of the 18th of MaTc
last, killed Israel Phillips, the deceased. this city, by stab
young man. about 20 years Of age and that the de-
PENDANT is also young That for several months pre-
v:aus, they entertained feelings Of hostility against eac
Sher aud that within short time before the fatal
was made each Of them evers times threatened 10 kill tn
other That The deceased larger heavier and songe
than the defendant but that he confined bed b.
I'd sickness for eight nine successive days. ending three
four days befoe he killed. and considerably reduces
thereby. That few moments before the sabbing the
fherr hv Of both