The Valley Virginian. [volume] (Staunton, Va.) 1865-1895, 1871-12-28
sMILEY,s TRIAL.

We stated In our last issue that the result of
the trial Of Geo. W. Smiley, charged with
killing Jos. A Black-was not guilty. Ooe
Gay was consumed in taking the evidence
The following morning, the case was ably ar
gued by counsel-Phillips for Common
wealth and Baldwin and Cochran for the pris-
oner, when it was given to the jury. After
retiring for about two hours, they returned to
the Court room, and asked for instructions
from the Judge. We give them below, as
applicable to the general law of homicide
Having been requested by a number of citi-
zens-among them several of the legal fra
ternity-we applied to Judge Smith for a
copy Of the instructions, which are as fol-
lows:
Gentlemen Of the Jury:
I have beer called upon to instruct you,
and shall for your guidance state several gen
eral propositions, which stripped of all legal
technicaities, are universally correct, and
constitute the very essence of the law of hon.
icide
If, from all the evidence in case Of hon.
icide, it appears that the act of a. person which
causes the death Of another was attended
with such circumstance IS are the ordinary
symptoms of a wicked, depraved and malig-
liant spirit it is murder.
On the other hand, where an act produc-
ing the death of another, though intentional,
is attributable solely to the passion of anger
duly excited, it is manslaughter.
In other words, malignity of heart makes
murder; mere anger, manslaughter.
AS malignity of heart, styled malice. is the
substance of murder, of which, under our
statute there are two grades, viz Murder in
the LIST, and murder in the End degree; it
follows that with US there are two grades Of
malice.
If the intent to kill another, moves from
the pure unmixed malignity of wreckless
and deprayed heart whether such malignity
and depravity be general in respect Of the
whole human family, or extends only towards
the party killed, in either case) the act of
killing constitutes murder in the first degree,
and is punishable with death.
On the other hand, if the intent to kill
moves in part from such malignity of heart,
and in part from undue passion of anger, the
killing is murder in the second degree, and
is punishable by confinement in the peaiten.
tiary for greater or shorter period, in ex-
actly such proportion as the jury may find
the malignity Of heart attending the offence
to have been tempered and mitigated by any
passion of anger fairly resulting from the cir
cumstances of combat or inadequate provoca-
ton.
Again: if the intent to kill moves solely
from the passion Of anger, without malignity
of heart Or malice, the offence is, not murder,
but manslaughtcr, which, though never justi-
fable, is less offence, punishable by con-
fnement in the penitentiary for less or
greater period of time, within the limits fix
ed BY statute, in proportion as the jury may
find the degree Of hest of blood or passion Of
anger, as measured by the circumstances of
combat or provocation more or less reaonable
and adequate. From what has been stated as
to killing on passion of anger, without ma
Lightly of heart, i follows that in such cases
the fatal stroke must be given before the pas
STOP had time to subside, and the blood to
cool, for it is to human frailty alone that the
law extends this indulgence. and not to set
tied malignity of heart.
Again; too, if the slayer's intent to kill
proceeds from just apprehension that the
act is necessary to preserve his own life, Or
protect his person from enormous bodily
harm, the homicide is excused in the eyes Of
the law. And this legal right Of aelf-defenee
exists under all circumstances, with e few
we'll defined exceptions established by law,