The daily gazette., 1878-12-09


Dy coming in collision with an obstruc
'ioli' peihg log, or cross-te as it is COM
monty called, placed upon the track by
the prisoner at the bar as was confessed
by MN } and two Of the valuable servants
Oh The corporation, George Babes and
MS son George Babes, Jr., then upon the
train III the course of their employment
as engineers, and two O. her persons also
upon the train were killed in conse-
quence of such collision. There is no
question about the collision, or the injury
resulting nor that Harley G.. Brown,
the prisoner at the bar, caused both. OF
what offence then in legal considerations is
he guilty; for as there is no pretence that
he has any right TO place the obstruc ion
upon The track nor that such obstruction
was the cause of the disasl Ell, we repeat
mat the prisoner before you, is unqdes-
tionably, guilty of one or the other of the
great crimes have mentioned, and of
"Iich IL is your province to say, as triers
oi that question, after we shall have
given to you the law applicable to all
cases of homicide, or mauslaughter, un-
less you shall find him so destitute of
reason or insane at the time as to be ire
sponsl BILE for his acts. We should not be
unwilling TO say to you, if we could,
Notwithstanding the fact that two unof-
Tending and valuable citizens, and also
faithful servants In their calling, ito say
nothing OF the other two persons above
referred toy, lost their lives by this dread
ful occurrence, that the prisoner is, in our
opinion, not guilty of either of these Of
fences, and instruct you to acquit him of
all crime: but thus we cannot do. Unless
IL has hpnn shown that "A ~ "
charged is not on any ground person
responsible for his acts and their conse-
quenees, we and you must h old him liza
bic for them. That you may decide
which of the crimes mentioned the pris-
oner committed, if either, we proceed to
define them, with appropriate examples.
Bnt first rs 10 homicides generally.
All homicides, or XII ling by ione man of
another, are criminal or not. Those
which are criminal are characterized as
murders, or as manslaughters. Those not
criminal are such as the law justities or
excuses; but with them we have nothing
to do inthisIcase. There are three classes
of crimigal homcides-murder of the
first degree, murder of the second de-
gree and manslaughter. There are all
felonious homIcides also. as dlstingui he'd
from justifiable and excusab homicides,
which are not felonious. Both the classes
OF murder are distinguished from man
slaughter in this. That malice is an ingre-
dent, or feature Of them; whereas it is
entirely wanting in manslaughter.
Murder OF the first degree is, By the
statute law of this State, in effect, where
one rational being kills another person
with cypress malice qtorettought, or in per-
petrating or attempting to perpetrate
any crime punishable with death. Any
killing, with malice, implied IN lao, is
murder of the second degree.
Express malice atorethougM is when one
person kills another with sedate delib-
crate mind and formed design, such de-
sign being evidenced by external Tor out
ward) circumstances. discovering the in
ward intention, as lying in wait; antece-
dent menaces, former grndges, aud con-
certed schemes TO do the party some bodi-
ly harm; the deli 5erate selection and use
of a deadly weapon, knowing it to be
such, a pre-concerted hostile meeting,
or in street fight, mutually agreed on,
or notified and threatened by the pris-
oner, &c.
Implied malice, or malice an legal
sense, is where any deh berate, cruel act is
committed by one person against another
however sudden. Thus where one per-
son kills another suddenly without any
or without a considerable provocation,
the law implies malice; for no person
unless OF an abandoned heart, would be
guilty of such an act upon slight or no
apparent cause. So il a man willfullv
poisons another, in such deliberate act
the law presumes malice, though no par
ticular enmity can be proved, and where
one is killed in consequence of such a
willful act as shows the person by whom
II is committed to be an enemy to all
mankind, the law will infer general
malice from such depraved inclination to
mischief Malice is an inference or con-
clusion of law upon the facts proved to
the jury, and among those the actual in
tention of the prisoner becomes an i'm
portant tact; for though he not have IN
tended TO take away life, or to do any
personal harm, yet he may have been en-
gagged in the preparation of some other
telOniouS or unldlctW act, from which the
law raises the presumption of malice.
Thus if one attempt TO Kill or MAIN A,
and in the attempt by accident XII IL,
who was the dearest friend or darling
child; or if one in the attempt to procure
an abortion, cause the death.of the mother
or if in riot, or fight one of the parties
accidentally kill third person who in
terfered to part the combatants and keep
the peace, the law implies malice, and
the slayer is guilty of murder. And
| though other agents intervene between
the original felonious act and its consum-
,mation-as if A gave poisoned food to
| B, intending that he should eat it and
die, and B, ignorant of the poison, and,
against the entreaty of A, gives II
TO child, who dies thereby, or 1t is vol
UNFAIRLY tested by an Innocent third per
son by way of convincing Others of his
belief 1t is not poisoned (as in the case OF
the apothecary inte whose medicine pre-
pared by him for sick person another
had purposely mingled poison) the law
still implies malice, and the slayer is held
guilty of murder. Malice may also be
proved by evidence of gross recklessness
of human life, whether it be in wanton
sport such as purposely and without in
tent to do hurt riding a vicious horse into
a crowd of people whereby death ensues,
OF by casting stones or other heavy bodies
likely to create danger over wall or
a building with intent to hurt the passers
bv. one Of whom is killed, or where IN
a1v other manner the life of another Is
crlielly or grossly endangered, whether
Nv actual violence or by inhuman prlVa-
tion or exposure, and death Is caused
thereby. And whenever the fatal act is
committed deliberately, or without ade-
ouate provocation, the law presumes
that il was done with n alice THAT is with
an evil purpose, or design; and 1t be-
hooves the party charged to show by
av'dence or Inference from the. circum..
| e.a,,,ao of the case that the offence is OF