The daily gazette., 1874-12-02


Isionious homicide. "a Inz such csss aass Ne il.
have last described, the law implies malice. r
The essential legal Characteristics, therefore
which distinguish the scrims D Of murder with h
malice implied by law and ct the second {
degree under orr statute from murder with =,
express malice aforcthought and Of the first ':
degree under 1t, are negative rather than
positive; for to render the killing murder
with implied malice and Of the second de- 4
gree under the statute, 1t must be done
without premedttntion and formed design
to do the party some bodily harm and sud-
denly without any or considerable provoca-
tiop, such as l have just stated and which
on the other hand distinguishes It from the
offsnse Of mspslaughtsr. l'.
The last mentioned offense, or the
cline Of mauslaughter. consists In the
killing of one person by another with
out the essential characteristic Of malice
as before defined, either express or i'm.
piled, as when It Is dono In q sudden
transport Of passion, or heat OF blood mp.
on u reasonable provocation, and with.
out any malev0lence, resentment or re-
venge, other than that which such
provocation was naturally calculated to
produce under the circumstances; 1t Is
In the benignitv and Indulgence of the |
law considered as solely imputable to |
human infirmity and the Offense becomes
granddaughter only. The prOvocatiOn /
| to haye This effect, however, must be Of |
such q natnre and degree as to reasona-
bly, produce such q sudden transport of
passion and heat Of blood, or TO impel
INN without consideration or reflection, |
land without time to cool or to recover
the control Of his reason and temper ir-
resistably to the commission of the act.
But the law, even in its henignity for
the common infirmity OF our ma ure and
the dominion of our passions over our
4better Judgement, recognizes 10 provoca-
ltfon as reasonable or adequate and suffi-
Icidnt for this purpose, short OF actual
personal violence, amounting to an as
sahlt and battery, except that greatest
OF injuries which can be done to shus-
bands maretat relation, and then only
4 when the adulterer Is taken ttuQrGnte
delicsu by the injured party and IS Killed
in the oct, and such is the law In general
in regard to provOcati0ns consisting In
personal violence merely that even
such prOvocation are not deemed suff1ci-
ent for the purpose of palliatiDg and re-
ducipr the homicide to man slaughter.
when the killing Is done by the shooting
4 with q gun so loaded and charged as to
be likely to endanger the life of the par.
" at whom it Is fred or by the use of
Iany other weapon or instrument Of q
kind that is likely. In the manner used 70
ptoducB death. 4 For 1t ls only in such
cases when the instrument used Is not
. In itself Of such quality or nature or In
such q condition as apparently TO en-
, danger the life Of the Killed in the mode
in which It is so employed at the time,
THAT the law considers the provoc ition
sufficient to alleviate and reduce the
. crime Of tho killing from murder with
Q Implied malice, and of the second degree
!, under our statute to the offnese of man
! slaughter. But as 10 has been cOntended
!. by the counsel for the prisoner that the
burden rests on the Stale in this case
. to establish his guilt to any extent OF
!, degree whatever, we must say to the
! ! Jurythat IL they are satisfied from the
!. shot the deceased, William T. Lukens
!. In the manner and form alleged in the
= Indictment, and that his death was the
. result of such shooting, the fact of suct
. killing ia presum ed in law to have beer
!. ldOne BY him with implied malice
4 and is consequently murder o
q the second degree under our statute
q unless the contrary has been shown
70 and the jury is satisfied from all thu
ID evidence before them, that he did no
jkill him with implied lmalic for even il
,r such cases as we have before described
e and referred to the person who seek
l. to shelter himself Under the plea or pal
Y. lliation of reasonable and sufficient pro
! pocation and that the killing was don,
y with aninstrulnent not hkelytoproduc
\, death must make. out and prove to TIL
= satisfaction of the jury the circumstan
n Ioeg OF alleviation or the reasonable
Ii lprovocation necessary to extenuatc AM
lie reduce it to the grade OF manslaughtc
se unless they arise out OF the eVidenc
Introduced on the part OF theStatc agalns
70 him. Because, ,as we have before said
81 as soon as the killing is shown to hav
y been committed by the accused, II
:, presumed in law to have been don
er with malice until the contrary is prove
he to the satisfaction OF the jury. We hav
L. already advcrted sufficiently perhaps
.e, TO the nature or kind of provocatio
as which isrequired inj law for the pu
pose, but we feel it otr duty TO ad
eh for the further information OF the jur
=, that it is not every insult, injury c
a. wrong to either the person or propcrt
d. real or personal of another that wi
r. constitute such reasonable provoc'
en- ton and that no mere words, howcvt
n. either on the land or goods of anotht
1s unless attended with force and violent
IL against the person, can justify the xii
ing of the trespasscr or extenuate 1t
a the extent of reducing it to the Grim
vi of manslaughter even when committe
nv with an instrument not likely to el
in danger life and much less when don
re with a weapon or instrument likely
e. produce death. And no notice or wa
ne ming to keep off or to forbid allpeESoi
sch 3 from trespassing on the premises
~ property Of another and no statute
~ there be such astatute, was alluded to b
Isf the counsel for the prisoner in this cas-
oe that makes such tresspass as has bee
proved in this case punishable by !
his dictment as public wrongs or misd
by meanor can effect or afrogate thispri
ID ciplc of law without a provision eth
M express or implied init 10. Adica
isf sd that such shall be the effect of 1t.
ed ,ed Of course getlemen all that we ha'
Ihs before said in this our charge to yo
] is proceeds and is predicated on the a
~ S.S--.-<ax.. <ho ehnDtsnn Of tho n