Wilmington daily commercial., 1874-12-02

liberate mind and formed design and is not so
evidenced by external circumstances as express
malice is but which is implied by law from any
deliberate, cruel act committed by one person
against another, however suddenly it may be
done without any or without considerable pro-
vocation AS where one person kills another sud
denly without any or without considerable pro
vocation as will in law palliate and reduce the
killing to the crime Of mansaughter, the next
degree Of offence in the legal aud descending
scale Of unlawful and felonious homicide. In
such case as we have last described, the law
implies malice. The essential legal characteris-
tics, therefore, which distinguish the crime OF
murder with malice implied by law and OF the
second degree under our statute from murder
with express malice aforethonght and OF the first
degree under it. are negative rather than posi-
tive for to render the killing murder with inn
piled malice and OF the second degree under the
statute, 1t must be done without premeditatlon
and formed design to do the party some bodily
harm and suddenly without any or consldera-
be provocation snch ss have just stated and
which, on the other hand, distinguishes it from
the offence of msnslaughter.
The last mentioned oifense. OF the crime OF
manslaughter consists in the killing OF one
person by another without the essential charac-
theristic of malice as before Defined either ex-
press or implied, as when it is done in a sudden
transport of passion or heat of blood on a rea-
sonable proyocauon, and without amy maleyo-
lence, resentment or revenge other than that
which such proyocation was naturally calculated
to produce under the circumstances, it il In the
bengnity and indulgence of the law considered
as solely mputable to human nirmity and the
offence becomes manslaughter only. The prov
cation TO have the effect, however, must be OF
such nature and degree ar to reasonably pro
duco such sudden transport OF passion and
heat of blood OF to impel him without consider
ton or reflection, and without time to cool of
10 recover the control OF biz reason and temper,
irresstably TO the commission of the act. But
the law, even in itH benigmty for the common
inhrmity OF our nature, and the dominion OF
our passions over our better Judgment, recog-
nizes no proyocation as reasonable or adequate
and sufficient for this purpose short OF actual
personal violence, amounting TO an assault
and battery, except that greatest OF injuries
which eau be done TO II husbands marital rela-
tion and then only when the adulterer If taken
fdgrdnh deiicht by the injured party and il
killed in the act and such is the law in genera
| In regard to provoeatons consisting IN persona
| violence merely, that even such proyocationt
are not deemed sufficient for the purpose OF pal
| liating and reducing the homicide TO manslaugh
ter, when the killing done with the shooting
of gun 10 loaded aud charged us to be likel.
| to endanger the life Of the party at whom II II
| fired, or by the use OF any other weapon OF IN
strument of kind that IL likely IN the mHnne
used to produce DEATH For it is only IN sucl
cases when the instrument used Il not in itse
| of such quality or nature or in such a condi
| ton rs apparently to endanger the life of tin
killed in the mode in which itlia SO employed at tin
| time, that the law considers the prOsOcation sui
| ficient to alleviate and reduce the crime OF the
killing from murder with implied malice and o
/ the second degree under our statute to the Of
| fence of manslaugter.
But az it has been contenled by tile connse
for the pfi oner that the burden rests the Stat
| in thiA case to establish his guilt TO any eXten
| or degree whatever we must say TO the jury tina
il they are satisfied from the evidence betor
them that the prisoner shot the deceased, vii
| liam Il. lukenH, III the manner and form allege
in the indictment, and that his death was the re
suit of such shooting the fact Of such killing
presumed in law to have been done by hlm wit
implied malice and is consequently murder G
the second degree under our statute, unless ti
contrary has been shown and the jury IL satlf
fed from all the evidence before tbem that Ia
did not kill him with implied malice, for even 1
such cases as we have before described and :,
ferred to the person who seeks TO shelter hin
self under the plea or palllatlnli of Il reasonabl
and sufficient provocation and THAI the KILN
was done with all instrument not likely TO pre-
duce death, must make out and prove to the sal
isfacton OF the Jury the circumstances of alleyii
tion the reasonable proyocation necessary to el
tenuate and reduce il to the grade of manslaugl
ter unless they arise out of the evidence produi
ed on the part Of the State against him. Becaus
as we have before said, ar soon as the KILN
is shown to have been committed by the aeon
cd, it is presumed in law to have been done wit
malice until the contrary is proved TO the sail
faction of the jury. We have already adyertt
sufficiently, perhaps, to the nature or kind
prOyocatlon which ir required IN law for th
, purpose bnt we feel il onl dntN to add for ii
! further information OF the jury that it in N
every neult, injury or wrong to either the pc
son or to the property, real or personal, of n
other that will constitute such reasonable pr
: vocation, and that no mere Words however q
: fensive or insulting, and no tresrpass either {
e the lands OF goods OF another unless attend,
b with force and yiolenc3 against the person, ca
/ justify the killing Of the trespasser,
/ eXtenuate it to the extent Of reducI
it to the crime of manrlaughter, even wh'
{ committed with an instrument not likely to Q
i danger life and much less when done with
1 weapon or instrument likely to produce deaf
e Aud no notice or warning TO keep of, or TO forh
q all persons from tresspansing on the premises
9 property Of another, and no statute, il there
IL such statute As was alluded to
l. the counsel for tue prisoner in this case tll
n makes such n trerpass has been proved
Ii this case punishable by Indictment as pub
l. wrongs or misdemeanors can effect or abrogi
II this principle of law without provision eth
/, express or implied in it to indicate that IN
e shall be the effect of it.
y OF course, gentlemen, all that we have beio
said m this, our charge, to you proceeds and
lie predlcated on the assumption that the shoot
p Of the deceased by the prisoner at the bar "
ID wiful, and if You are satisfied from the pre-
IN that his death was the necessary result OF Il
act, then the law presumes. and you are TO inf
ID that it war not only wilful and unlawful, but
done with malice by him, unless you have =
1t ficlent evidence before you to satisfy you to
D. contrary aud Of which, under the sole
If nifty and responsibility of the oal
ss you have taken, and the grave and solemn dl
III deyolyed by law upon You ar jurors in the ga
you are the sole and final judges between
is prisoner and the State II, however, there
H. any evidence before yon IN this sntfici
f. to ga tisfy your minds that the act of shoot
ce the deceased was not wilfuliy and intentioni
ur done by the prisoner at the bar, then he Hho
ed be entirely acquitted aud your verdict Hho
III be not guilty. And, of course, gentlemen, if
re- ter carefully and conscentiously considering
of the facts and circumstances proved in the ca
al you should have reasonable doubt as to
on guilt of the prisoner at the bar, he is entitled
lie the benefit of that doubt
on --------
or "a pran of Ioy i'm Every word r