New-York tribune., 1873-05-08
JUDGE FANCHER's OPINION.

centons contained I'm the errorbook in this case Those
winch most me upon the argument grow out OF
the exception of the defendant to the following portion
Of the charge OF the learned Judge at the trial al '"o
course OF hi, instructions TO the jury be said;
Tno fa,t Of the killing in this case being substantially
conceded IL becomes the duty OF the prisoner hrle "a
satisfy YOU that not murder. which the Ia" Wouu
impy from che fact Of the killing under suoh crcu-
stpeeg i'm the absence OF explanation that IL was man
slaughter the third degree or justin iOle nolSide %
because as we have said, the fact OF the Hhg Dehg
conceded aud the law implying malice from the C,rcun
stances OF the case, the prosecution case Is luy 1 anu
entirely made out aud therefore have no reason
able doubt AS 10 That the prisoner shall give eyi-
dence TO sasfy you thIt 1t Was jnstitIbe homicide
To this paragraph exception WAS taken by the PRISON
ers counsel While 1t must be conceded that the earheo
Judge IN this portion OF his charge correctly stated tho
rule as II existed at common law equally clear that
for the moment he os sight OF Of the elements OF
murder ia the first degree defined by the statute OF
NewYark An essential element in the crime OF murder
is tho int ut with which the homicide Is comnltted III
is not every homicide that Is murder The word nuroer
in ancient times meant killing Of person
Its meaning was extended by Lord Coke g nst 4O' ana
his definition has bcen adopted by Blackstone aud other
writer's on the common law lie said, IL murder when
a person OF sound memory and discretion unawiuy KILL
eth any reasonable in being and under the kings
peace with malice aioreth1ugh either express or Inn
Piled" At common law the malice aforeth0ught Is an
essential ingredient OF the crime. IL may De
either express or implied. 1t is express When
the On5nSe Is com ultteu Win u ucIluUiaVO "N M"
formed design as whom the external circumstances ndi
cate the inward intention such as living in wait ante
ceent men .ces former gridges and concerted schemes
to do the decd Itii at law implied from any
deliberate cruel act whereby man Kills another WIN
out any, any cOnsd rabe, proyociton Tor II Is helu
that no one unless OF an abandoned heart would be
guilty OF such upon slight or no apparent cause
MALICE INFERRED FROM THE KILLING.
1t is said thlt there general presumption In Grim
fntNu1s whatpVer IL the nat
ural and imm edatc consequence Of his own acts and
this rule has been often applied In detecting intention
and malice. FROM the moral connection between the
conduct AMI the motive 1t Is said that the motive IS
infcrable from the act; and whenever act is
done injurious person, malice IS pri0'1 Jdeie to be
presumed in the individual doing the act.
At common law tbs malice aiorethousht was no ex-
ception 10 the rule II inferred from the commits
SION of the act The corpus deleH being proved, the
intent inferred from the homicide. Sir NJ Foster,
in his Discoure page 2 observes that in every charge
OF 1rder the fact OF killing being first proved, all the
circumstances OF accident necessity. nrmity, are TO
be established by the prisoner unless they arise out OF
the eyidsnce produced against him for the law pre-
sumes the fact be founded in malice unless the
trary appe lrs Other writers aud authorities establish
the same proposition. This Is still the law IN England.
(Reg agt Chap uan Eng. p. lG] II Cox's Grim. Law
Cas- ~ In case, tried in 1s Mr.. Justice Hannen
said Assuming that tho prisoner caused the death OF
the deceased it would be for the prisoner TO show
stiration In the absence of such Justification the
aw would he tndt he intended to Kill
the deceased
Under the rule, therefore, II exists at common law,
when the prosecution have proved the death alleged by
the act prisoner, the malice Is Inferred from the
killing. Tle burden then rest, ON the accused ana Il B
incumbent him repel the inference Of malice III
he fail show tiat the act WAS committed under err
cumsances that rcpelled the inference OF malice then
the crime Of murder rs sufii 'iently proved.
This stern rule OF the common law which attributes
malice every act Of killing, has been questioned IN
the Untel States, and has been denied aud departed
from IN numerous cases. ~ Is sii9 20 sty u ~ nor
and 1t is not now the law in New-fork Mls.a-
chnseIts and some other States The law Of New
York that the burden OF proof even after the ey
dence OF the killing remains on the prosecution unti II
killing, but the intent win which the act was com
mitted and without proof OF premediated design the
crime of murder IN me irs degree Is not eslapshGd
Tne evidence TO show the design may be indirect or CIR
cumsantia and IN most perhaps, must be OF such
mind but there must be something IN the tme place or
circumstances OF the homicide the conduct OF the
accused regard 10 II, tdat Will Afford ground for the
hn1ng Ot the Jury tnat tue accuscd was actuteu Dy
premedatcd design u effect DEATH before there can be
conviction for murder under the nrst subdivision OF the
This essential fact the jury are to nd not because il
is inferred from the Killing but upon some evidence
which tends to establish the design. The burden OF
proving tue design rests the prosecution part Of
the to be proved against the prisoner. The malice
prepense premedtaei design tO effect death Is the
chief characteristic which distinguishes murder from
other species OF nOmicde aud the jury must determine
whether, on the evidence, II mas oeeh proved lhey
should be nstruce ed that is inferred from the kill
the design Deliberate homicide is murder under our
statute In Other words, where there Is intention TO
take fe and the intention Is cOnsummated IL Is murder
in the first degree Tue intention Is the criterion OF the
crime. IL may ne forned at the instant OF committing
the fatal have long existed still 1t is essential
quality OF tue defense whicn~the first subdivision Of
statute characterzcs as murder In the first degree.
Now the malce aiorethought OF the common law is
different thing from the premedltated design TO kill OF
statute The intent 10 take life was not necessary
constitute the former element. Malice prepense
a deliberate intention OF dong any bodily harm TO
unauthorized by law IL did not necessarily in
volvc intent TO take fe Hale r. Co. 45l People agt
Clark, NJ Y, 393.)
DEGREE OF FERMENTATION.
TWAS said, in the People agAustinl Park Conn Rep.
I69 that the intention OF statute is manifest
only from careful perusal Of all ITS enactments rea
tive homicide, but also from the recommendations of
the revsers They proposed that murder should include
homicide when perpetrated from premeditated de-
sign to do great bodily harm although without
deslgn 10 effect death, thus recognizing and adopting
tine priucipe Of implied malice ana defending II on the
ground that the transaction would be such would
ordinarily lead to the result OF taking life.
But the Legislature refused adopt the suggestion and
enacted section which, In the language the reviews
revser was founded on the great principle that cOnst
murder there should be express design take
life, such circumstances 10 induce very strong
presumption OF such deagn This view Of the law
lined the crime OF murder within It's proper bounds OF
premediated design to take fe The statute OF New
York defines the crime IN these words when perpetrated
person killed or OF any human being. Uavs OF 1862,
chap. 1o7, 25l Implied malice which makes killing
der wit out other proof Of an Intention 70 kill Is not
recOgn 5ed In the York statute. People agt Austin
Park l54 And 1t Is the intention which constitutes the
principal distinction between murder and
The keWYOrk statute has effected change In the law
by substituting the design in place of malice q NJ "
$685. The degree OF the premediatOn requisite TO the
OF murder has not been changed, bur the statute
requires, what the common law did not the evidence OF
the actual intention TO Kill The burden would rest In
such and Justly res on the prosec IoD 10
the intention TO Kill.
The rule of the common law has everywhere pre-
vailed IN the United States Ia tha United States ag
Armstrong H. Colt, c. e.. A6 IL held that though
malice Is not presumed merely nom tho fact Of killing.
yet the circumstance attending the homicide may be-
such that the law will deem 10 malicious In the United
states agt. Mango, H. Co g. C. Law Rep, lS5 Ill Lv.
Law Mag 49, tue Court held that when person kills
another with dangerous weapon, and the evidence Is
as 50 pfOYOeatOu and To which the
assailant u Incumbent on the Goyernmont TO prove