Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1872-04-10

/ is the killing in sudden heat or passion, where
/ there has been what the law deems reasona-
! bic provocatiOn to excite the wrath OF a man,
/ and it niitigates the offence in such cases, so
| that what might otherwise be deemed murder
| is reduced to manslaughter, by the fact of its
| being done in sudden heat or passion. / do
not know that there is any testimony in this
case which is claimed as conveying the idea
that # Little killed White, then it was case
OF manslaughter; but the burden of proof is
upon the government to establish the commits
sion OF the crime charged in the indictment.
Inc defendant rests upon his plea of moi
guiHy, until the government has established
hS guilt TO the satisfaction of the Jury who
are to try him, beyond a reasonable doubt.
therefore 1t is necessary for the government
to establish these various matters which go to
make up'the crime of murder, if they claim a
verdict of murder at your hands.
Express malice aforethought alone consti-
tutes murder in the first degree, unless the
| crime is committed in perpetrating, or attempt
ing to perpetrate some other crime which is
punishable with death or imprisonment in the
State Prison for life. 1t is not claimed here
that there was any attempt of that description,
so that in order to a conviction of this defend
ant for the crime of murder in'the first degree,
it must be shown that he did it of his express
malice aforethought That is what const-
1t is necessary for jury who find party
guilty of murder to determine whether the
murder is OF the first or of the second degree ;
so you want to understand what the distinction
is between those offences. Murder of the
first degree must be committed with express
malice aforethought, and murder otherwise
committed, that is, with malice implied by
law, would be murder of the second degree.
Malice may be an inference or implication of
lou nj l.,
the manner in which it is done, and that would
constitute murder in the second degree
There must be, to convict man of murder
in the first degree, evidence which satisfies a
jury beyond reasonable doubt, OF the MUIR
derous intention towards the party killed
Whoever with a sedate and deliberate mind
and a formed design doth kill man, does it
of his express malice aforethought. 1t is the
intention to kill the man who is killed, which
makes that degree of the crime. Murder of
the second degree may occur where there is
not an intention on the part of the person
who does the fatal act to take the life. You
are to determine in this case whether Little
intended to take the life of this man White
The implied malice which might constitute
murder in the second degree exists where in
the attempt to do serious bodily harm to one
person, the individual kills another against
whom no injury was intended. When death
is occasioned in such an attempt, it is murder
of the second degree although the original in
tention may not have been to take life; and
when the killing is unlawful and neither ex-
pressed or implied malice exists, the crime is
reduced from murder 10 maEslaughter. So
that there are various verdicts that may be
reached upon indictment ofthis description and
required by the evidence offered in different
cases.
In trial of this description it would be
competent for jury to find the defendant
mot guilty" if the government have failed to
establish his guilt beyond reasonable doubt,
mot guilty by reason of insanity, if the de-
PENDANT has shown by a preponderance of evil
| dence that he is free from criminal response
blity by reason of such insanity as would so
free him; equity of manslaughter" if there
is any evidence which shows that the act was
done in a sudden heat and passion, if there is
such provocation as the law recognizes as
sufficient; equity of murder in the second de-
| gree" if the fact of the malice is simply an
implication of law or equity of murder in
the first degree" if the jury find that he had
| deliberately designed and intended the death
| of the man.
1t is for you then, gentlemen, after review
ing the testimony to which your attention has
been SO fully called by the counsel that l need
not rehearse, to determine, in the first place
whether or not you are salts led that White
was killed by somebody; whether you are sat
| isfied that the fatal wound was inflicted upon
him by the defendant; whether it was the in
tenton of the defendant. to take his life, and
you are to look at the testimony which was
| given by the witnesses and see what conclu-
sions y, draw as to those matters. 1t is for
| you to say whether or not you are satisfied
that the two men were together alone in the
| chamber of the house there where they board
ed, and that White came down stairs falling
dead upon the floor from the effect o.
pistol shot; and you are to find who free
that pistol shot. 1t is suggested that it may
have been accidental. You are to look at tn;
testimony and see whether there is IN it tina
evidence which satisfies you that this defend
ant fired it, and not accidentally but inten
tionally you are to inquire what occurred
Immediately after, what knowledge the de
, PENDANT evinced of what had happened t
White; you are to consider what Inference
you draw from his attemps upon his own lif
at that time. If upon the whole you are sat
lsfed beyond reasonable doubt that the de
PENDANT did fire the fatal shot intending eth
or to kill White or to do him some great bod
lily harm, you will proceed then to examine
what is alleged in defence, which, perhaps, i
the main question to be settled in this case
1t is this: That the defendant by reason o
, insanity existing at the time is not RESPONSE
bic for the act of killing, and with regard t
that matter, | cannot state TO you the law il
better terms than it has been stated in cas-,
tried in Massachusetts, where the defence wa
insanity and it goes to show how far that de
fence is available in such cases, for a PARTIAL,
insane person may be responsible, criminally
for his acts, and that is what is meant wheI
j. - said there is difference between medi
ca! mems insanity and legal mems insanity
his i the rule then. in regard to the insant,
that gill excuse:
"a man Ia rot 10 DC excused from RESPONSE
t4lsty II be has capacity and reason sufficient
10 enable him u distinguish between nigh
ard EfoDg- az 10 the particular act he il thar
{ Go3ags Il kn0w!e3ge aud coasci0gsneGs tina
Che ai be IL Doing is wrong and criminal
aid VIII sot.tet bllg 10 Punishment. Ia or
der ~ " responsible be iDgst have sufficient
: power u memory - reeGlieet tie relations i,
which he stan&s 20 oibeTs and ia which
o.he.s atatlai thsi the acf be is doing il con
ifary to tiss plsn dictates VI justice and rigli
aud Injurious 10 others, aoe violation O
( rms aletAtes OF lAty IA $40