Delaware state journal. [volume] (Wilmington, Del.) 1870-1883, 1871-11-28

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here exists any necessity in this particular
,ase for my doing so.
The Sd kind OF homicide is fet0ni0us, and is I
either murder or manslaughter, and If murder, |
i is either murder in the LIST or I'd degree-if {
in the LIST degree the crime is punishable with
death-if of the I'd degree, by fine, pillory,
and it is punishable by imprison-
ment for life.
Murder may be defined or described as the
unlawful killing of human being under the
peace of the State with malice aforethought,
either expressed or implied. 1t must be COM
mitted by person of sound memory and dis
creton 1t must be an unlawful killing not
excusable or justifable, and the killing must
be committed with malice aforethought either
express Or implied Malice as an ingredient
in the crime is the essential criterion by which
murder is distinguished from mansaughter.-
Wherever malice is the moving cause of the |
act committed which results in death, the crime |
amounts to murder
Malice in its legal sense the sense in which |
it is used in respect to the crime of MUIR
der, is more comprehensive than mere person
al hatred or maevolence towards individuals.
For whilst it includes hatred it also compre-
hends and characterizes all acts committed
with an evil disposition, all wrongful acts in
| furious to another done Intentionally without
| Just cause or excuse-all acts done from an
unlawful and wrongful motive. Malice there
fore according 10 its legal Specification may be
said to characterize all acts done voluntarily
and with wilful disregard of the rights or
safety of others. Where the act of killing is
committed with cypress malice it is murder in
the first degree.
Express malice is where one person kills
another with sedate, deliberate mind and
formed design, which formed design may be
variously manifested as for instance by laying
in wait, by former menaces or threats disclo-
sing disposition or purpose to commit the act
charged-former grudges, former i'll will, Sc
cret enmity, hatred or sullen malevolence tow
ards the deceased or in fact by any other cir
cumstances which disclose an evil or wrongful
intention or purpose of the accused towards
the deceased. Killing with express malice as
; | had said, constitutes murder in the first de-
gree.
Y Implied or constructive malice is an infer
ence or conclusion of law from facts proved.
1t is implied by law from every deliberate
cruel act committed by one person against an
other, however sudden the act may be- For
= common sense teaches us that whoever vOlun-
4 tariy or wilfully does a wrongful and injuri
u GUS act against another does il malciously.
The iateRtioa to kill is the grand character.
istic which distinguishes murder in the first
; degree from murder in the second degree
i Wherever therefore there is design on inten
{ ton deliberately formed in the mind to take
. life, and death ensues in consequence OF sucl
= design or intention, it is murder with express
II malice, and consequently murder in the frs
= degree. The act Of violence therefore iron
!. which death has ensued, in order TO amour
: to murder in the first degree must be done de
a liberately with express malice Of the eXistenc'
u of which malice the design or intention TO taxi
Il; life is the evidence.
!. Murder in the second degree is where The
IL malice necessary to constitute it, is implied by
IT law. And malice, is implied by law from any
" deliberate cruel act committed by one person
u against another, however sudden. While
: therefore there exists no design or inteutlOl
u to take life, but death ensues from an unlaw
&c full act Of violence on the part OF the slayer
III and in the absence of adequate or sufticien
re proyOcatiOn, 1t is murder with or by implel
y malice, and consequently murder in the sec
N ond degree,
as have said that the act Of violence charged
~ as causing death, in order to amount TO tn
a crime OF murder, must be committed with
~ deliberate mind and formed design Ger
10 tainly this is just, and at the same time,
IN humane provision OF the law. Deliberatcl.
le and Wllully doing an unlawful or wrongful
d. act OF violence without just cause or excuse
ie indicates the existence of malice in the perpC
q, TRAITOR and where death cnsucs from such Al
IN act, malice makes il murder.
Us 1t is especially necessary therefore to enab-e
q; you to properly discharge your duty as Jurors
~ that you should comprehend and undcrstan
20 the legal significance OF the terms "deliberat
81. mind, and formed design" Now, no specif
We LengM Of time is necessary 10 make an act
81 deliberate act, in legal contemplation. A dt
~ liberate act may be very sudden. It does ne
re 50 much import in its legal acccptali0n, an a.
Gu done AFTER time for reflection, as q vountar
Ia, act done upon motive Of purpose and dcsigi
OF in contradistinctiOn to acts done in the heat
,e' passion, paroXysm Of resentment in whiC
ie- reason and choice for the moment have 10
their controlling influence.
si- The very definition of murder with implit
malice shows that this is the legal signiflcatiC
"a of the term 'deliOeNtc,' when used in Tn
he connection.
nd Malice is implied by law from any de'i5s
on ote, cruel act committed by one person again
he another, horerer sudden. Such is the expli,
and Uniform declaration Of the law upon Il
ud subject.
OIL Your own experience and observation, &c
e. iicmcn must have Taught you that the INC
gu. sudden and instantaneous act may be attend
HM with circumstances which leave no doubt
ute the mind al il was the result of deliberate
Indeed, VIC are lcn in no uncertainty in rega
~ TO the legal meaning Of The term 'deberat
"a tor 1t is well settled in the law both in Il
on country and in England, that Il the design
NY take lie be but the conception and intent
I"e temptation as if it had been the design
s'y hours and that if the person killing had til
Ia Tor reelection or thought, and did not think, Il
lli did then intend TO kill and death cnsued fro
ms lis act Of Violence it is just as much case
'len Wlliul deliberate, premeditatcd killing, as
-uls he had intended it for hours.
!, u The intention TO take life may be shown
er- variety otcyternal circumstances surrom
en, ing or connected with the fact of killing
It' such for instance as the declarations Of I
slaycr;-ihe mode or manner of killing-l
The character Of the instrument used as deaf
ho weapon or weapon likely to produce death,
aud well as by The manner in which tho wear
ide was sod by the slayer.
de- All instruments likely 10 take life are det
ND ~ weapons. gun is omphatically dca,
ing weapon
DICE Now gmtlcmcn it is my duty to say to )
wa That il is well settled rule of law of uniyel
This application, tic wisdom of which will be
% cl-nIed upon a moment reflection that ev
man is presumed TO contemplate and int
ana the ordinary and natural consequences of
ue own voluntary acts. II the act thus volur
illy and Willully done has a direct tender
10 destroy the life of another, the natural C.
clusion from the fact is, that he intended
as destroy such PERSONS life, so that if pcr
voluntarily discharges the contents Of loat
ing. gun against the person of another, the n
Isl, sumption is tliat he intended to kill him
rom q general rule, AL homicidc-al killing o
OK human he ng is presumed 10 be malicious a
.nct OF course amounting TO murder until the G.
Y in trary appears and therefore it is incumb
for upon the accused TO make out by proof 10
lere satisfaction OF the jury, all such circumstan
flee Oh alienation mitigation, extenuation, Just
Y or cation or excuse as may he relied on as mat
rom OF defence, unless proof arise out of
he evidence produced against him.
the It follows. therefore, that the prcsumpt
ions Of malice arising from the fact of killing II
ce be rcbntcd, oycr-bomc and displaced
, in showing circumstances of alienation, miti
her non cAehuahuh' Juslhcalon or cX, use.