Daily Los Angeles herald. [microfilm reel] (Los Angeles [Calif.]) 1876-1884, 1878-01-20
The Fonck-Waller Case.

charges of Judge benson in the
Fonck. Waller case, the progress of
which we have noted from day to
day:
In the Seventeenth District Court.
The People Vs. c. N. Waller
DEFINITIONS BY THE COURT.
Murder is the unlawful killing of
human being with malice afore-
thought. Such malice may be ex-
press or implied. 1t is express
when there is manifested q DELHI
crate intention unlawfully to take
away the life of fellow creature.
1t is implied when no considerable
provocation appears, or when the
circumstances attending the killing
show an abandoned and malignant
heart. All murder which is per-
retrated by means OF poison, or
lying in wait, torture, or by any
other kind of wilful, deliberate
and premeditated killing, or which
is committed in the preparation
or attempt to perpetrate arson,
rape, robbery, burglary or may
hem is murder of the first degree,
and all the other kinds of murder
are of the second degree.
Manslaughter is the unlawful
killing of human being without
malice. 1t is of two kinds: l, vol
untary-upon sudden quarrel or
heat of passion; I'd, involuntary
In the commission of an unlawful
act, not amounting to felony; or in
the mission of lawful act
which might produce death in an
unlawful manner, or without due
caution and circulnspection.
Homicide IS excusable in the fol-
lowing cases: lst-When commit
ted by accident and misfortune in
doing any lawful act by lawful
means, with usual and ordinary
caution and without any unlawful
intent. 2d-When committed by
accident and misfortune, in the
heat of passion, upon any sudden
and sufficient provocation, or upon
a sudden combat when no undue
advantage is taken, nor any dan.
gerous weapon used and when the
killing is not done in a cruel or un-
usual manner.
PROSECUTION AND GIVEN BY
THE COURT.
THAT if the jury find that the
deceased came to his death by
means of gun-shot wound
inflicted by the prisoner, it will
then devolve upon the prisoner to
show by the preponderance of tes-
timony that the killing was
excusable or justifiable, but the
rule is subjec to the qualification
that, if the testimony for the prose-
cution leave doubt as to whether
the killing was justifiable or excus-
able or not, then the prisoner will
receive the benefit of the doubt.
2.-That, if they find that
short time before the prisoner
fired the shot, the de.
ceased used violent and insulting
language toward the prisoner, that
this fact would not be sufficient to
justify the prisoner in assaulting
the deceased with deadly weapon.
3.-That, if the jury should find
that, at the time of the alleged
shooting, the defendant la
bored under excitement Of
mind and fear of deceased produced
by his violence, such excitement
produced by such violence, would
not justify the shooting nor would
it have been justifiable for
the defendant TO have taken the
life of the deceased, even if the de-
ceased had inflicted upon him great
bodily harm, unless it appeared
that it was necessary to take the
life of the deceased to prevent such
bodily harm.
5-That, if they find that the de-
PENDANT deliberately discharged a
gun at the deceased, loaded with
powder and ball, and the deceased
came to his death by reason there.
of, and that the act of the defend
ant was preceded by and was the
result of concurrence of will, de-
liberation and generalization,
though there was no appreciable
space of time between the Intention
to kill and the defendants act, the
defendant is guilty of murder in
the first degree, aud no words Of
reproach uttered by the deceased
before the alleged shooting, no
matter how grievous soever they
were, would be sufficient provoca-
tion to reduce the offsnse from
murder to manslaughter; and that,
if the killing was the result of de-
liberation, no matter for how short
a period, it would be murder in the
first degree.
SUBMITTED BY THE DEFENSE.
All the presumptions of law, in
dependent of evidence, are in favor
of innocence, and every person is
presumed innocent until proved
guilty. If, therefore, upon such
proof, there is reasonable doubt re-
manning, the accused is entitled to
the benefit of it. 1t is not sufficient
to establish probability Of guilt,
though strong one, arising from
the chances that the crime charged
is more likely to be true than the
contrary; but the evidence must
establish the truth of the necessary
facts to reasonable moral certain
ty, q certainty that conyinces and
directs the understanding and sat
isles the reason and judgment of
those whe are to act conscientious
ly upon it as jurors in criminal
cases.
The defendant has offered him
self as witness in his own behalf,
and, 1 charge you that his testi-
moDy is to be taken and considered
precisely as you take and consider
other testimony. 1t is your prov
ince to believe all he and other wit
nesses have testified to, or to reject
his testimony and the testimony of
any witness. The defendant, in be-
coming witness, must be treated
the same as any other witness Of
fered.
A uroupd Of dafapca ia that tho