The Stark County Democrat. [volume] (Canton, Ohio) 1833-1912, 1876-12-28

even OF the minor offences of assault anC
battery, or assault only,-and the indict
ment, although In form for murder in the
first degree only, yet in substance, and
in contemplation Of law, embraces also
those lesser and minor offences, and
would, should the testimony warrant It,
support a verdict Of guilty of either Of
them.
From the provisions of law TO which j
have called your attention, and which
have read for your information, you will
perceive that in order to constitute mur-
der in the first degree, (where there is nc
attempt to commit rape, arson, robbery
or burglary, and no administration oi
poison 1t is necessary that one person
shall purposely and of deliberate and
premeditated malice, kill another. That
murder IN the second degree exists where
one person purposely and maliciously,
but without premeditation and delibera-
tion, kills another. And that manslaugh-
ter is committed where ono person un-
lawfully kills another, without malice,
either upon sudden quarrel, or unin-
tentionally, while the slayer is in the
commission of some unlawful act.
Purpose to Kill and malice being thus
essential ingredients in the crime Of mur-
der in the second degree, and premedita-
ton and deJiberGtiOn in addition TO pur-
pose to kill, and malice being necessary
ingredients of murder in the first degree,
as charged in the indictment, 1 will pro-
ceed to explain to you what these terms,
within the meaning Of the law, signify:
AS to the word purpose, it is difficult
to make its meaning more clear by any
definition or amplification. In the con-
nection in which it is used in the Statute,
it retains its ordinary Specification. II
imports an act Of the will, an intention,
a design to do the act.
Malice, in ordinary discourse we are
apt to associate and confound with the
passions, spite, anger, hatred or revenge,
but in contemplation of law, it may and
frequently does exist, without the pres
ence of either of these passions. Indeed,
great provocation upon sudden quarrel,
in certain cases, is regarded in law as
disproving malice, even where life has
been purposely and unlawfully taken.-
Malice, in its legal sense, signifies will
fully formed intention to do another an
unlawful injury, whether the wrong-doer
be prompted by anger hatred, revenge,
hope Of gain, or his motive springs from
the wantonness and depravity of heart
regardless of social duty and fatally bent
on mischief.
| will now call your attention to the
terms deliberate and prenteditGted, as
used in the Statute to qualify malice, in
the description of murder in the first
degree. Both premeditation and deliber-
alton require action Of the mind.
Premeditdted means thought of, de-
signed or contemplated before the actual
commission of the act, and not original
ly conceived at the very moment of the
deed.
Deliberate means turned over in the
mind, weighed and considered so as to
form settled and sedate purpose. To
constitute deliberation, she must by re-
Election have understood what she intend
ed to do, and have designed to do it in
order to harm. If the malicious purpose
was thus by reflection weighed and con-
sidered, and the sedate and settled design
was formed by her, and approved by her
judgment before the act was done, there
existed within the meaning of the Stat
ute, deliberate and premeditated malice,
not malice only, but malice accompan-
led and intensified by a sedate and delib-
crate mind, with settled and formed pur-
pose.
To come more directly to the case on
trial, is the defendant guilty as charged
in the indictment of criminal homicide,
and if so, in what degrs2 And 1 will
proceed to state the facts which you must
find to be established by the testimony in
the case, beyond reasonable doubt, in
order to authorize you to find the prison.
er guilty of the crime of murder in the
first degree.
First.-You must find that Edward
Richardson is dead. That he died on the
10th Of January, A, D. 1876, at the Coun-
ty of Stark, and State of Ohio.
Secondly.-You must further find that
his death was then and there caused by
the act of the prisoner, in then and there
shooting and mortally wounding him in
and upon the head, to wit: In and upon
his left temple, with leaden bullet which
she then and there shot and discharged
at and against his said left temple, by
means of gun powder, from a revolver
which she then and there had and held.
The indictment charges that this NOR
Ldl WOullNl w VI WldIll VI
ter of an inch, and of the depth of three
inches. But ifthe wound was mortal, its
exact dimensions are immaterial. The
indictment also charges that said pistol
was held in the right hand Of the pris-
oner, but if she thus killed the said Ed
ward Richardson by shooting him with
said revolver, it is not material in which
hand it may have been held at the time.
Thirdly.-You must further find that
the deceased was thus, then and there,
and by the means aforesaid, purposely
and maliciously killed by the prisoner.
But if you find that the prisoner then
and there, shot and killed the deceased
as aforesaid, by shooting him in the left
temple with leaden bullet, discharged
by means of gun powder from the pistol
which was offered in evidence in this
case, the law prima facie presumes, from
the mere fact of the death so produced.