, 1859-01-18
THE LAW OF MURDER.
1nstsuttfous In tho Case Of MeNamts.
In C1Rcr1r CorRr, Of January Special Term
lS59--JudQe MAS1EHRs, preceding. = Ind;csnatnl

In Circuit CorRr, Of January Special Term
ls59-Judqt AAS1Esss, prtttdiag.- g.-Iad; ;c.natal
for Murder.
The reople, etc. rs. Michael McNamee.
The following we're the Instructions given 70,
the people in the case Of McSamee. They con.
tain very full exposition Of the luz Of murde,
as it exista in this State:
!. Murder, as defined By our statute, is the
unlawful killing Of huuHn being in the peace
OF the people, with malice atorethought either
express or implied.-Stc. % Of Grim. Code
- To constitute killing murder under our
Statute, the nct must have been perpetrated
either with express malice, viz: with that de.
liberate intention 10 take a~aY the life of fsl.
low creature, which is manifested By e1terna!
circumstances capsule Of proof land this de-
scEiptou includes every case Of deliberate and
preueditated nurder}; OF the act must have
beea done under circumstances where malice is
implied By law. And the Statute declares that
malice shall be implied where no consid-
eruble prov ocat:or ior the killing has
been shown-as wbtrG ! p2rson strikes another
with deldly weapon in d manner likely 10 kill
or produce great bodily i1arm, under sudden beat
Of passion not causcd bY that serious md highly
and which il apparently Sufficient TO make the
passion Irresistible, required hy the statute to re-
durc KILN the 1naa-1aughter. Or secondly
when all tile circumstances Of the killing show an
abandoned and malignant nca1t- Section q Grim
inA Code or, tbi-,i, where tht KILN, is inyoun-
tary. b4. lanp'p, al.i!e tic party killing is u.
gagged in Sic commission Of al :lct which j, i.-
cons qutaces naturally tents to destroy the life OF
hunlan Icing, or while he is engaged in the COM
mission Of ] icloay- Proriso to section %, Grim
ina1 Ce!e
3. 10 constitute, therefore, hat malice REQUISITE
to thc crime u nrdcr, it is NIT necessary to prove
that the Moi1al injury was gwen aith q settled
and dcliberlte arglyn to take llte Legal malice
not ouly inc;u6'', hatirl and revenge but de-
notes every "s'ugiul act toward an ia,
dvdual without jnst cause or excuse ;
and is intended to denote any actiGu flowing
disposition, indicating heart regardless Of 80.
c'ai duty and faiably beat on mischief. Ard
in all cases where The law implies malice. the
proof is complete. and the presumption cannot
be removed by evidence tending to prove that
the purity did not intend 10 xiii but onty to in
llct serious bodily injury.
Under our etntute there are no degrees Of
murder. All fe!oaious killing Is either murder
or n,aaslaughter. uence ever. killing, whether
Of express or implied malice, IS murder ir the
hrat degree without reEurd TO the particular III
teal with which the fatal blow w-s inE:c:l
whelher the intention was to kill or onlr to ia-
d.c. grierous bodily i.ju-r. And in no case
where the killing is proved 10 hAye been 'perpe-
trated with express maloe; or der circum
stances where the law implies malice can the
tn-nce he graded d1wu to l4l3cslaug gnter BIZ CIV
proof OF an intention not t kill.
The loience OF mnuslars l;er is t.:i3 dli7ed
By tue statute:
5. Msns:augh,er is the unlawful killing Of a
hal"a being, without nuli:e ex,ress or I'LL
Piled, and without any mixture re deliu2ra:iou
whnte7e7. 1t Eust be voluntary, Ipoa sudden
Lest oi passion caused BY d pEcEhs-tion appa.
reDtly sufficient to make the passtoa irresistible:
Ut involuntary in the ccmu.i-aion Of IN unlawful
t.,rrf - tt,-,.. -
culnEpection.
&, In cases Of voluntary .'e-sl:rg:teT, there
u,nst De serious and highly nro o7ok,ng injury
ihascted upon the person kllial., sufficient 10
excite IN irresistible passion in rsasna:b..
ptTson or aa attcmp. by tie person ki!'ed %
cnmmis serious personal isjarf ou the ;'eraoa
killing.
Z. Ihe killing mu3: be tic reaa!t OF that sud
deu ylulent Impulse Of oas:,cn supposed 10 T..
irresistible; for if there should .ppear 10 A%7=
b.tu In !rieryu! betw-r. lua i.5sLult and psuv1
cHion Evea and the li:!iEy. tutIic tEt FIR II.
solce ol reason Rnd humanity to te Ls2,d. lie
killing shall b. attributed 10 d,!laer@'e rere=s-
and punished as murder.
8. Tue distinction. therefore, between t!lc
crime Of murder and maas|uugascr consists in
the presence or absence Of .ual or lc,.Et lnnl-
ice. Or in the words Of the statute, "msli:e e1-
p1es8 OF Implied" And all frluaious killing,
not the result Of that sudden passion sappJaad: 10
b. ':rlsistibie, cansed by proyoc4t,ou Of tie
character described in the statute, is C,arder.
Ia the application Of these principles to the
evidence, the court instructs the jurY,
lst. As to expresB malice:
Tint If the jury shall tad lind from t., c7:-
dence that the prisoner deliberately assaulted
and best the deceased, Jane McNamfe, III the
manner and with the intent charged in the IN
beating resulted in har death; md If they shall
also find that such us3apit and beatinp prncatd