New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1876-05-21

result Of the unlswful cot Of the accused,
james :. Prestidge, and that the accused
wae adjusted by melioe. either exnresa
or implied. Assumiae, e believe Is sd.
mitted, that Hardeman u dead. that he
came to his death in this parish bv violence
ct the hands of Prestidee, then Won have
only to inquire. was the violence uaed bv
Prestidge lawful or unlawful, and NJ he
or not actuated BY malicei II you find that
the act of Pfestidge was unlawful and with
lawful, but without malice, them tho ofFense
is granddaughter.
Twill now instruct You - to the lega
meaning Of the words 'smalico afOre
thought" - used in the definition of thu
crime of murder. In its legal sense thil
term means not only hatred. spite, i'll viii
and luminosity to tho deceased, but alec
characterizes oil acts done with IN evil dis
position. reckless disregard of the lives
heart void of just sense of duty, and
fatally bent on mischief.
| You will then observe that the term ma
lice in its legal sense, as used in this COD
nection, may simply indicate . wicked
| heart, and to constitute murder in case Of
intentional killing there is NO need the in
| tent to kill should have existed any parti.
cuiSE tiMo OoAOI0 Guo Sct ~ poI1OEW0u, pro
| vided it appears to be . deliberate, willful
act. Thus in the crime of murder, which
is always stated in the indictment to be
committed with 'malice aforethOught," it
| 10 neither necessary, in support of such in.
| dictment, to show That the prisoner had
any enmity to the deceased, nor would
proof of absence of i'll will furnish the &C.
cused with any defense when it is proved
that the act of killing was intentional, and
done without any justidable cause.
The accused and the deceased may have
been strangers or friends up to the time of
the occurrence, still the law implies malice
where the killing was the result of any de-
ibefate wickedjand cruel act, committed,
however sudden, without any or without
considerable prov0cation. The law assumes
that no person, unless of an abandoned
heart. would be guilty of such an act upon
. slight or no apparent cause. With this
intended in Law by the words implied malice.
We now come to the consideration of the
distinction between murder and man.
slaughter. No provocation will justify 0
man in killing another, nor will it excuse
him killing on prov0cati0n; there must be
murder or manslaughter. Where one kills
another upon reasonable provocaticn in tho
sudden transport of passion land without
any such wicked, cruel act as from which
slaughter. This 10 an allowance made BY
the law for the frailty of human nature
In considering the right of self-defense and
what prov0catiOn win reduce the Offense
from murder to manslau9hter. verv little
aid can be given men of your in
telligence, but l will give YOU these
few general rules by which you
may measure the facts and circum-
stances of this case, always bearing in
mind that the first object in society being
to protect life. The laws will not for an7
light reason excuse the man who has as
ahmed TO kill his fellowman. On the con.
trarv. he must be prepared 10 show that he
had good reason to believe it was necessary
to save his own life or to protect himself
from some great danger then immediate
And nreaainr uDon him. that he should have
the decaaaed. and that in resistino thia
real or auppoeed daneer he onlv made use
of means in some reseoaable proportion TO
che charsctar Of the attack. Every citizan
has tha ri0ht to resiat force bv foroe in
the necasaarv and lavful defanse of his
nerson or that of his family. and when it
snneara that a murderous attack il mazda
Win the Immediate intent to commit Q
felony. the one Attacked must not flv. but
he nav stand his Ground and face hia adj
versarv even vken neoeesarv. without
he;n0 ruil5v Of anv crime. and this does
mt conflicf With the ola ruIe. which still
holds rood. that every citizcn must hold
rha I,fe of his I. llov man in the aame es :
timation "A his own. and must s.retreat to
the Wall" before he can be excused for hay-
inc killed his fellow man, no matter how
erring that fellow man may have been.
There is no conflict between this principle
which gives the right to kill, and the other
which REQUIRES the citizen to retreat and
withdraw if possible when Won consider
hem in connection with the nature OF the
attack.
In one instance q murderous attack il
made with the appearance that q felony is
about to be perpetrated: in the other only
an assault and battery, or some insulting
abuse.
Thus when resistance is prevented from
the fact that an attack has been made,
still if that resistance is made with q
deadly weapon used in Q very cruel man
ner not at all iustifiable by the nature and
danger of the attack, and death ensues,
| the offense will be murder; when self-de.
tense is urged as an excuse, it is not neces-
sary that the danger should have been real;
| if it appears that the accused had reason
able ground to believe that some great dan
ger was immediate and pressing upon him.
| from which he could not with safety with
draw, that3will be sufficient to authorize
him to make the necessary defense, even
| though it should afrerward appear that No