Wilmington daily commercial., 1874-11-25
PRICE TWO CENTS.
FIFTH EDITION.
Murder Trial.
oNcLusroS OF TIE ATTORNEY GENERALS AReu-

CONCLUSION OF TIE ATTORNEY GENERALS ARep-
MENT-THE CASE GIVEN TO THE JURY.
The prisoner at the bar stands indicted for
murder in the first degree, and to determine the
issue it is necessary that you shall understand
the nature and character Of the crime and what
constitutes il.
Murder in the the first degree under our
statute, is the killing of human being with
what the law terms cypress malice aforethought,
which is when one person kills another wiltully
and deliberately, and with formed design,
such formed designed being evidenced by some
external circumstances indicating the concealed
purposes of the heart, such as lying in wait,
antecident menaces, former grndges and concoc-
ted schemes to do the party slam some bodily
harm. Every homicide is presumed by law
to be malicious, and therefore murder until the
contrary appears from some circumstances OF
alienation, excuse or justification, which must
be shown by the prisoner by way Of defence, on
disclosed by the evidence on the part of the
State, so that when the State has established the
fact of killing, it deyoves upon the prisoner to
show that the circumstances under which the
act was committed are such as to reduce below
that of murder, unless the evidence
on the part of the State discloses such facts and
circumstances as will 80 reduce the crime.
The Attorney General takes the ground that
the prisoner at the bar is guilty of murder in the
first degree or nothing. II so strikes us. but We
are not to express any opinion in reference
to his guilt or innocence. Ii your investigation
should be confined to that issue, it would be mn
necessary 10 eAlihlu 10 you lnulubr Ol tuo bec-
ond degree, or manslaughter. l will however,
say that murder of the second degree is when
one person kills another without express
malice aforethought, but with what
the law terms malice implied
and malice is implied by law from any deliberate
cruel act committed by one person against an
other,as when one person suddenly kills another
without considerable provocation. not amount
ing, however, to such palliative excuse or JUS
tification as would reduce the offence below the
ina Of mi n aithar dpprpn
Justify the act of killing.
Homicide committed without malice, whether
expressed or implied by law, does not amount to
murder of either degree, because of the absence
of malice which is the essential element of muir
der. 1t is the distinguishing feature between
murder and manslaughter have said that IL
is conceded that this case rests entirely on cir
cumstantial evidence. Much has been written
upon this subject and much said in this case.
The rule, however, may be stated in few words
and perhaps more. satisfactorily to the minds
of the jury than by more extended remarks. The
rule is that circumstanaal evidence must
be of such character as to exclude
any other hypothesis, but that by
choking, sufiocatiDg and drowning. For If 1t
should appear that he came to his death in any
other manner, the prisoner cannot be convicted
under this indictment, and thereby 1t must be
proved that the prisoner at the bar committed
the act which resulted in the death of the party.
In this case there is no controversy about the
death of Mackey, but it is denied that Taylor
cast, threw and pushed him INTO Drawers
Creek, and that he came to his death by chok-
ing, suffocaton and drowing.
These facts we say to you must be proved be-
yond a reasonable doubt and the evidence Of
fered by the State being entirely circumstantial
of the guilt of the party. In such cases a YER
dict may well be found on circumstances alone,
and these often lead to a conclusion far more
satisfactory than direct evidence can produce.
| The onus of proof is on the State, the corpus
deficit either by direct proof by circumstantial
Or presumptye evidence, and all the material al
| legations in the Indictment must be so estab-
| lished to the satisfaction beyond doubt 1t
must be proved first that the party alleged to
have been murdered is dead secondly,
| that he came to his death as charged
| in the indictment in this case
| they must be proven to the exclusion OF every
other reasonable hypothesis, except that of the
| guilt of the prisoner. II the circumstances at
| tending the case as proven before you are such
as to lead your mind to the conclusion Of the
guilt OF the prisoner, to the exclusion of every
other hypothesis, it will be your duty to
convict him. II upon full and care
full consideration of all the facts and crcum-
stance surrounding the case you should enter
tain a reasonable doubt growing out Of the eyi-
dence, such doubt as reasonable men would be
constrained to entertain, the prisoner will be
| titled to the benefit of that doubt
| The Attorney General concluded at 1922,
when the bailiff was sworn and the jury retired.