, 1859-04-29

word 'Seddk0 may be sac to denote an act
done in pursuance Of a motive with an in.
tent and formed design in contradistiuclion
to an act done in an ebulition Of anger, in
which reason aud Judgment are for the mo-
ment suspended. And the same may be
said of the word "deHbsraie,n the books
constantly speak in this connection Of de-
liberate act, hol0crer sudden; whereas, if
deliberation implied time and reflection,
n deliberate act could never be sudden.
The iatcai0n to kill, the Immediately exc.
cuted is still the true criterion of the crime !;
and this intention is to be collected from
the words mud actions of the accused We
therefore say TO you gentciaen Of the jury,
that in order to constitute the ofense Of
killing murder in the first degree, under
the statute, it is necessary the olcnse
should have been committed with express
malice; and it is sufficient if the wliuluess
and deliberate premeditation are proved,
though they arose aud were generated at
the period of the transaction. Although
the Legislature in its classification OF
grades of this ofense have used language
as comprehensive as the terms Of the COM
mon law; so that whatever was murder at
the common law, is murder under the stat
ute--yet out of great tenderness for human
life the Legislature has provided that no
man shall suffer death for this ofTense un-
less it was committed purposely and of pre-
meditated malice--in other words, it must
be characterized with all the circumstances
specified in the statute; and the dstin-
gushing characteristic is the express malice.
If this be lacking as an essential ingredient
Of the offense, except as l shall state to
yeq presently. although it may be murder,
it is not marder, in the first degree. The
exceptions are where the killing was done
in the preparation or attempt to perpe-
trate some one Of the Offenses named in the
statute The law has wisely determined
that killing uuder any Of the circum-
stances enumerated in the statute, of which
the law implies malice, shall be equivalent
to the express malice requisite in the other
part Of the statute 10 contitute the Offense
murder in the first degree ..u
Sec. l3 Of the Code, page 78, provides
that killing, purposely and maliciously,
but without deliberatioa and premeditation,
shah be deemed murder in the second de-
gree. This, gentlemen, covers every other
species Of killing not embraced in tue pre-
ceding section, and which would, by the
rules of the common law, amount TO mur-
der. In other werds, all killing which is
done under such, circumstances as that the
law implies malice as contradistinguished
from express malice, is, under our statute,
murder in tile second degree. So that while
the rules Of the common law ia reference
to this great crime have not been invaded
by legislative enactment, we have the diff
fcrent kinds Of killing graded and cor
responding punishment has been provided.
Murder in1he FIRST degree is punished with
death nj the second degree Imprisonment
in the peniteniaryr at, lard Labor, Should
you be satisfied that . h9mieide was com
mitted, aud that the defendant has had
the offence Brought home to him II you
are satisfied that the killing was not at
tended by the circumstances prescribed in
the sections to which l have called your
attention; but that the killing was nnlawr
fui, without malice, express or implied,
either voluntarily, upon a,sudden heat, or
involuntaEy, but 10 the commission Of
some unlawful crime, then the offence is
not murder, but manslaughter. s1i
Defendants counsel requests the court
"to instruct yeu, that if at the time Of the
alledged killing of White, defendant, with
his people, was engaged in a war with the
whites, you mnst bring in verdict of not
guilty, even il you are satisfied be partici-
pated in said killing,9 u '. aosUp
In answer to this, VIC say, that even If
yoa believed that the killing in} this case
took place in what is. commonly known. a
state of Indian war, or the party killed, l.
aud the parties killing, both being aFmcd,
and rallyng in the ranks of tue different
parties, it would be no defence. 1t would
furnish no Justification for the killing @"
These forays made by maVauding par
ties, whether embracing o whole tribe,
part of tribe, or members of different
tribes, cannot have attached to them the
rules and principles applicable to what is
known aud recognized by civilized commn-
mites as a state Of war. a i .'s lhl
We, therefore, say to you that these out
breaks by bands Of lawless Indians resid-
ing in our midst, in which neither sex, age
or condition are regarded, are not recog-
nized by the law as such a stute Of war
fare as would justify the taking Of hfe
But even If the court should err in this,
it certainly would not justify the shooting
down Of an unarmed man on the public
highway, as was the case in this instance.
We, therefore, decline instructing you as
requested by the defendant. But we say
to you, that these Indian outbreaks which
are proved by the defendant to have exsit-
ed in this country in 1856, at and about
the time Of the killing Of White, are mat
ters with which we have nothing to do ;
and it Is your duty in maturing your YER
dict, to exclude from your consideration
everything connected with or relating to
these Indian outbreaks.
1t has ever been the policy Of our gov
ernment to treat the Indian tribes within
its jurisdiction as dependant, not Ad.Pea-
Ag1t-trpatinrr them more rs wards 90. lie