Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1875-06-12


and that he was killed in the county of
Davidson"
The Court here explained the legal diff
ference between principal and accessory in
the commission Of a crime, and continued:
'If the jury should be satisfied from the
proof, that the defendant killed Eagan with
his own hands or by his own act, or that
Cox killed him, and that this defe 1dant
was present, aiding and abetting, then it
will be necessary for them to examine with
great care all the facts and circumstances
in relation to the motive, means, and man
ner Of the killing, to enable them to de-
termIne what crime, or degree of crime, if
any, the defendant has committed in taking
the life Of the deceased"
Judge Frazier here defined very fully and
clearly the various degrees Of murder and
manslaughter, according to the common
and statute law, after which he charged
that:
''If the proof should satisfactorily show
that this defendant killed the deceased,
then, as already intimated, the presumption
is that it was done with malice, and that
the killing amounted to murder in the
second degree; but the presumption may
be rebutted, and the killing extenuated
from murder TO manslaughter by any proof
showing that the killing was done in re-
sentiment Of some adequate and legal provo
cation; or the killing may be excused by
proof satisfactorily showing that it was
done to protect the defendant from death
or great bodily injury. But, to excuse a
homicide upon the grOund OfIselfdefense, it
ought 10 satisfactorily appear from the
proof that the defendant was not in fault
himself, that he declined to enter into any
conflict with the deceased; or, if there was
a fight or combat by and between him and
the deceased, that he abandoned such con-
hict and retTeated as far as he could with
safety to himself, and that he avoided the
necessity Of taking the life of the deceased
by every reasonable means within his
power.
"If, however, it should appear from the
proof that the defendant, without fault or
prOyOcatiOn on his part, was attacked, as
saUlted or menaced by the deceased under
circumstances such as to furnish TeasOna-
bic grounds for believing, and the defend
ant did honestly believe, that the deceased in
tended to take awayihis life, Or;dO him some
great bodily injury, and that there were
reasonable grounds for believing that the
danger was imminent and that such de-
signs would there and then be accom-
plished; under such circumstances the de-
PENDANT would be excused for taking the
life Of the deceased, although in fact, such
danger may not have existed.
"TO excuse the defendant for taking the
life of the deceased upon the ground of ap-
pretended danger 20 bis own life, the proof
ought 10 show that the danger was
either real, or that It was honestly believed
to be so by the defendant at the time of the
killing; and il ought further to appear that
such belief or apprehension was formed up
on reasonable and sufficient grounds, that
the danger was apparent and imminent.
Previous threats or even acts Of hostility
will nOt.of themselves, excuse the killing
There must appear to have been some
words, acts or demonstrations made or done
by the deceased at the time, clearly
indicating a present purpose to do
the injury. Former threats, grudges, hos
tile actions or any other antecedent circUm-
stances can only be looked to in con-
neCtiOn with present demonstrations as
grounds of apprehended danger; and, to |
constitute such deferse, the belief or ap-
prehensiOn Of danger must appear to |
have been founded on sufficient circum- !
stances to authorize the opinion that the |
deadly purpose then existed, and the fear |
that it would at that time be executed; |
and thought further to appear that the kill |
ing was done under an honest and we'll |
founded belief that il was absolutely neces-
saTy to kin at that moment to save the de- |
fendaIit from like Injury.
"If, however, it should appear from the |
proof that there was, at the time, either a /
real or apparent necessity to kill the de- |
ceased to save the defendant from a like |
injury, but that such necessity was brought |
about by the design, continuance or fault of |
the defendant, or that the killing was not /
done under the fear that the circumstances |
indicated, then such necessity would be no |
excuse for the killing, and the plea of self |
defense must fail"
After pointing out how the jury were to
pass upon the testimony and Credibility of /
the witnesses, the Court continued:
''The jury should be satisfied, beyond all |
doubt, of the guilt of the de- |
PENDANT before they would convict him of |
any one of the degrees of homicide charged |
in the Indictment; and, if not so satisfied, |
they should acquit. II is not meant, how /
eve-, by a reasonable doubt that the proof /
must amount to physical or mathematical |
but to a moral certainty-that Is,
it should convince the mind of its truth, so /
that they would be willing TO act upon it
if it were a matter of the highest mo-
ment to themselves. Voluntary drunken
ness or intOxicaliOn is no excuse for crime;
it can be looked to only where the ques-
ton is whether the killing was murder in
the first or second degree. Murder in the
first degree depends upon the intent and
state of the defendants mind at the time
Of the killing. Il must be shown
hat the killing was done with a COO. and
purpose to a prevIOusly-formed
design to kill; hence, any proof shown, or
tending to show, that the defendant was or
was not in a condition 70 form a deliberate
1esign to kill is competent to to the jury
IS evidence in the cause; therefore, the in
0xicatiOn Of the defendant at the time of
he killing may be looked to upon that
question above indicated, not as an excuse
or the crime, bus IS a circumstance which
nay indicate the intent, or want Of intent
1r deliberate design, to kill, aud upon no
other question"
The charge closed with explaining TO the
ury the penalties provided by law for the
,ariOus grades of crime defined by the
Court.