Evansville daily journal. (Evansville, Ind.) 1863-1866, 1864-10-22

this You may take into consideration the I
manner and behavior Of the witnesses /
upon the stand, their general intelli- |
genee and knowledge of the facts about /
which they testify; also what weight, if
any, shall be given to the statements of /
q witness who has been impeaceed BY |
general evidence, if you shall be salts
fed that any witness has been so i'm
peaehed.
1t is your duty to take into consider !
alton the whole of the testimony given, /
and if possible reconcile it with any Civ
en- theory, 20 do DO so; bnt it this cannot
be done, you must deterpine for your
selves what you can safely receive and
act upon. and what you should reject.
The arguments of counsel, as well as the
charge of the Court, viii be valuable to
you only, Is they tend TO assist you in
arriving at proper and just conclusions
as to the Law aud testimony of the case
The charge in this case being for muir
der in the FIRST degree, also embraces
the lower degrees of felonious homicide,
that is: murder in the second degree,
and manslaughter
To constitute murder in the first de-
gree in this instance, it is necessary that
the killing should have been done mali
ciously, and with premeditstion and de-
Iiberatiou-the principal ingredient be-
ing the premeditation and elaboration,
that is, a preconcsived or formed design
in the mind of the accused to take life,
and afterwards the execution or carry
ing into effect of that design.
Murder in the second degree is where
the killing Is done purposely and mali
eiously, but without generalization.
MAnslaughter is defined to be the un-
lawful killing of any human being, with
out malice, either express or implied;
either voluntarily, upon sudden heat
Of passion, or involuntarily, but in the
commission of some unlawful act; that
is where the offence is committed upon
grieyioug provocation, consisting, where
dangerous and deadly weapon is used,
of something more than mere words and
epithets, however opprobrious they may
be, upon sudden heat or transport OF
passion, and no time for reflection inter
venes, the law reduces the offense from
murder to manslaughter.
4 homicide is exeussble when CON-
mitted in necessary selfdefense; that is,
when one is violently assailed. and he
has no other means to save his own life,
or to save himself from enormous bodily
harm, he may lawfully kill his assailani
in selfdefense.
The design or purpose OF the defend
ant 10 take the life of the deceased (if
frsm the evidence the jury believe he did
/ take bis life) is to be inferred from all
/ the circumstances surrounding the case,
the manner of indicting the wounds, the
instrument used, and its fitness to des-
troy life; every homicide is presumed to
be malicious, and circumstances Of ex.
euss or mitigation must come from the
defendant unless they arise out Of the
| evidence produced BY the prosecution
against him. But although the legal
presumption is that the killing Of enc
man by another is malicious, unless the
evidence shows the contrary; yet, under
our law, where there are degrees of muir
der, the presumption Of Law arising upon
the mere fact of killing, is that the
slayer is only guilty of murder in the
second degree. Ia other words, the Law
presumes malice from the mere fact OF
killing, until such malice is rebutted BY
the evidence; bat the law never pre-.
sumes malice from the fact Of killing
alone, and unless you are satisfied from
the evidence that the act was done with
Fermentation, that is, thought Of and
determined upon BY the accused before
Il was done, though this need not be for
| any considerable length Of time, Il would
not be murder in the first degree.
Malice aud the intent to kill are es-
sential Ingredients in both degrees OF
murder, the difference between them be-
ing determined BY the presence or alb
sence OF dsliberatiye purpose or pre-
meditation, which must be determined
by looking at all The facts and circum.
stances established by the testimony.
When such means are used as are likely
to produce death, the legal presumption
is that death was intended-if deadly
and dangerous weapon is used, such as
Is apt 20 produce death, If il is aimed
at vital part If no Just provocation
has been given, then the killing would
be murder, and mere words, unaccompa
MED by violence, either actual or men
aced, will not be sufficient, when dan.
gerous and deadly weapon is used, lc
reduce the ofense from murder TO man.
slaughter
If death, though wilfully intended
was inflicted Immediately after provoea
ton given by the deceased. supposing
that the proyocation consisted Of blow
or an assault, or other proyocation, by
the law deemed adequate to excite sud
den and angry passion and create heat
Of blood, this would rebut the presump
ton Of malice, and the accused could
only be guilty Of mauslaughier.
If it appears from the evidence that
an attack was violently made or mensced
by the deceased, or by the deceased and
others, on the accused, at the time oi
the killing, under circumstances de.
noting an intention to take hiB life OF
do him some enormous bodily injury, il
was lawful for the assailed TO kill bis
assaIlant, II all other means we're used
otherwise to save bis life or 10 prevent
the injury threatened, and if the attach
was Of such character that q retreat
would not diminish but increase the
danger, the accused might instantly slay
| Dis asSaitant WITHOUT TeIeetng AZ al
and the killing under these circum
stances would be excusable, although il
might afterwards turn out that no such
design to take life or do such bodily
harm existed, If the attack was of such
character as TO give reasonable ground
to believe that they did exist
The defendant is presumed to be limo
cent until his guilt is established BY the
evidence.
Before yon find the defendant guilty OF
any of the degrees Of felonious homi.
eide, you should be satisfied TO the ex
clusion Of 9 reasonable docbt that be il
guilty Of that offence, and if yoa have q
reasonable doubt as to whether the de-
PENDANT is guilty Of murder in the frsi
degree or in the second degree, you
should find for the lesser ofense. If you
have reasonable doubt as TO whether
be is guilty of murder in the second de.
gree or manslaughter, thus your finding
should be for manslaughter; and If you
I r1ae1-aLl. -