Eureka daily sentinel. [volume] (Eureka, Nev.) 1871-1887, 1878-08-02

his " life or prevent his receiving great
bodily harm, the killing of the other was
absolutely necessary and it must appear
also that the person killed was the assail-
ant, or that the slayer, if he was the origi-
nal assailant, had really and in good faith
endeavored to decline any further struggle
before the mortal blow was given. The
killing being proved, the burden of PROV
ing circumstances Of mitigation, or that
justify or excuse the homicide, will devolye
ON the accused, unless the proof on the part
OF the prosecution sufficiently manifests
that the crime committed only amounts to
manslaughter, or that the accused was JUS
titled or excused in committing the homi-
eide.
In other words, where a voluntary or
intentional killing has been proved, in the
absence of further proof the law presumes
the killing to have been malicious, and
consequently that it is murder, and that
presumption remains until circumstance
Of mitigation, or that Justify or excuse the
homicide, are proved either by the State or
by the defendant.
For, as has been observed, malice may
be either expressed or implied, and malice
is always implied when no considerable
revocation appears.
There is no difference between express
or implied malice, but only in the proof
by winch il is established.
Where the proof shows, as it sometimes
does, that there was on the part of the
slayer a deliberate mention unlawfully
to take away the life Of the person killed,
this is express malice.
But in the absence of such proof of de-
liberate intent malice is implied, that is,
it arises as illegal presumption II there APP
pears to have been no conside rnble
provocation, or when all the circumst inces
of the killing show an abandoned and ma
lignant heart.
An unlawful killing without malice and
without deliberation is manslaughter.
II it has been proved beyond a reason
able doubt that the defendant on or
about the 10th day of JUNE A. D.. 1873, in
the county Of Eureka, State Of Nevada, did
~wilfully-that is, intentional, kill Edgar
Kicker, you should consider first, whether
he was acting in necessary self-defense; and
if not, next you will have to determine be-
tween the two degrees of murder.
In a preceding part Of this charge, l
gave you the law as TO self-defense, and
manslaughter as well, as the general dis
~tinction between murder OF the first and
murder Of the second degree.
All murder which is williul, deliberate
and premeditated, is murder Of the first
degree. An intentional killing is a willful
killing. As to deiiberati0n and premedita-
ton, the intent to kill need not have exist
ell for any given length of time before the
killing. To constitute generalization and
deliberation, it is only necessary that the
question whether to kill or not to kill
should have been presented to the mind,
and the unlawful intent to kill distinctly
formed in the mind Of the slayer an in
slant before the firing Of the fatal shot.
As to proof Of design to Kill, every rea-
sonabie man is presumed to intend the
natural consequences of his own voluntary
acts. II such a man fires a pistol at tie
head or vital part Of another, he should be
presumed to have intended TO kill.
4 defendant in a crimina action is pre-
sumed to be innocent until the contrary is
proved, and in case OF a reasonable doubt
Of his guilt he is entitled to be acquitted.
And il it satisfactorily appears that n
crime has been committed by the defend
ant, but there is a reasonable ground Of
doubt in which Of two or more degrees he
is guilty, he can be convicted OF the lowest
OF such degree only.
A reasonable doubt is not a mere posi-
bic doubt or vague hypothesis of in
nocence, because everything relating to
human affairs and depending on moral
evidence is open to some possible or mag
airy doubt. 1t arises from that state Of the
case, which after the entire comparison and
consideration OF all the evidence leaves
the minds of the Jurors in that condition
that they cannot say that they feel an
abiding conviction to q moral certainty Of
the truth Of the charge.
Words Of reproach, whether spoken or
written how grievous soever, are not sufli-
cient pravocation to free a party killing Of
the guilt Of murder.
In order to avail himself Of the plea of
self-defense, the defendant must show that
at the time of the killing lie had reasoua-
BILE apprehension of imminent danger.
There must not only be reasonable grounds
to believe that n design to kill or inflict
bodily harm upon him existed in the mind
Of the deceased Kicker, but the purpose to
execute the design must be accompanied
by some attempt to execute it. o. Kicker
must at least have been in an apparent
situation to have lone 50, and so induced
a reasonable belief that he intended to do
it Immediately.
Where the Justification il based upon
recent threats and circumstances which
tend to lead the defendant to believe his
life was in imminent danger, the threats
and circumstances must not only tend to
tine belief, but they mnst force the belief
upon the mind, and then the belief must
be reasonable and such SIS reasonable men
act on.
Where threats have been made but have
never been followed up by any overt act, a
bare apprehension OF danger by the person
threatening growing out of such threats
viii not Justify him in killing tie party
threatenir 6. There must be %cirenmstan-
ces which, coupled with the threats, are suf-
ticient to excite the fears Of a reasonable
man.
Mere threats, unaccompanied by some
demonstration of hostility from which the
defendant might reasonably infer the in
tention of the execution by deceased would
not justify the killing; nor would acts of
hostility, however violent of themselves,
excuse the defendant. Their must be
some overt acts or words, at the time,
clearly indicative of a present purpose to
do an injury. The defendant must show
either that he was actually assailed, or that
he was menaced by the deceased, at the
time, in such a manner as to induce him
as a reasonable person to believe that he
was in danger of receiving great bodily
harm. The term covert acts means any
acts OF the deceased which manifested to
the mind of a reasonable person a present
intention on his part to kill defendant, or
to do him great bodily harm.
The defendant can not avail himself Of
threats or menaces previously made against
him by Kicker (if you believe such was
madel, unless at the time Of the killing de-
PENDANT was assailed, or that sufficient eei-
dence to convince a reasonable person that
he was in danger Of receiving bodily in
jury, or of losing his life at the hands of
the deceased.
If you believe from the evidence that on
the 10th day of June, 1878, in said county,
a few hours after receiving the letter which
is in evidence, the defendant, Chartz, pro-
cured a loaded pistol and had the same in
his hand or in his pocket, and approached
the deceased, Kicker, and deceased and de-
PENDANT had some angry conversation, and
Kicker took off his coat, and then threw up
his hands and made no further or other hos