The Morning herald., 1878-12-09

charged is not on any ground,a person res
"nsible for his acts and their consequent
ces, we and you must hold him Liable for
them. Thst you may decide which OF
the crimes mentioned, If either, the pri-
soner committed, we will proceed to define
them with appropriate examples. But
hrs. as to homicides generally: ..@ 4.
All homicides, OR killing of one man by
another, are criminal or not. Those
which are criminal are characterized as
murders or as manslaughters. Those not
criminal are such as the law justifcs or
excuses; but with them we have nothing 10
do in this case. There are three classes Of
criminal homicides: of the first
degrse, murder Of the second degree, and
manslaughter. They are all felonious
homicides, also, as distinguished from
justifable and excusable homicides.
(The Chief Justice then went on to
define the excusible homicides and also
those of felonious character, as defined
by the laws Of the state.)
Express malice aforethought is when
one person kills another with sedate, de>
liberate mind, and formal design; such
formal design having been evinced by ex-
ternal Tor naturaD circumstances, discover,
ing the intention; as lying in wait, anti.
cedent menances, former grudges and con-
cocted schemes, to do the party some
bodily harm; the deliberate selection of a
deadly weapon, a preconcerted hostile
meeting, whether in a regular duel with
seconds,or in street fight naturally agreed
on,oor notified and threatened by the prison.
or &c. 0---.
Implied malice, or malice in legal
sense is where any deliberate, cruel, act is
committed by one person against another,
however, sudden. Thus, when one person
kills another, suddenly without any, or
Without considerable amount of provos
cation, the law implies malice; for no per-
sou unless of an abandoned heart would be
guilty Of such such conduct upon slight Or no
| Malice may also be proved by evi~
dence If gross negligence Of human life, as
in wanton sport such as purposely and with
an intent to do injury and when
ever the act is committed deliberately or
without provocation, the law presumes
that it was done with malice and it be-
hooves .the.party charged to show by evil
dencs or inferance, from the circumstances
of the case, that the offence is Of a mitiga-
ted character and does not amount to MUIR
der n
| Applying this law to the prisoner at the
bar, the consequence likely to come from
his act, must have been known to him as a
railroad man,-unless you are convinced
of his motive as he has explained it, he
is certainly guilty Of one or the other of the
degrees of murder. In addition let me
enjoin you to bear in mind that all homi-
cides not justifable or excusible (and this
is neither) are in the point of law,malic-
cous and every sane man, is supposed in
law to intend or design the natural or pros
bable consequences of his own acts. Harley
tG. Brown then, if you disbelieve his state,
ment designed to kill by his obstruction
Of the railroad track, which would be ex-
press malic aforethought and murder of the
| frt degree or had he general malignily, or
design of mischief and recklessness of con-
sequences to the lives and persons Of in
dividuals, under the circumstances of inn
pertinent shown by this case; that would
bring HIM within the description of those
who are enemies to all mankind, persons
regardless of social duty and fatally bent on
mischie:, and therefore guilty of implied
malice or the crime of murder Of the
second degree. 1t is for you, gentlemen, to
, say Of which of those crimes, if of either,
you think the prisoner to be guilty. If
howeye-, you feel constrained, after all that
has been said of the law, to believe the
statement the prisoner in your charge
, made of his motive, and thus reach the
conclusion that there was no premeditated
wickedness in his act you may find him
guilty of ssmanslaughter only. (The court
then went on to speak of manslaughter
which he said was the Unlawful killing O.
another, without malice either express, Oh
implied-or without premeditation. y \
The caution the law requires, is not tht
utmost that can be used, but such as Ii
used in like cases and has been found By
long.exp perlenced to answer the end You will
observe therefore, gentlemen, that where
death results from an act although not o
+ evil or wicked purpose, but baely unlaw
full, it is manslaughter in him who perpe
trates it, and would be murder if occasion
ed by such purpose, which is malice.
4 In order to assist the jury more freely
the court then laid down the following
, points
1st:-That when one, in pursuance o
any deliberate purpose, or plan, Of taking
another's life, or doing him some grea
bodily harm, kills him, he is guilty 0
murder of the first degree. II n
Il 2 Where there is not The evidence o
any such purpose or plan, and yet per
: son is killed in consequence Of a feloniou
act on the part Of the accused, or if an ac
! that dedotes disregard or reck(essness 9
I the lives of persons and individuals gener
r ally, it is murder Of the second degree.
III 5. Where there is no malice or evil de
r sign, either in fact or in law, and yet dealt
q ensues from merely unlawful act; or fror
.o4yIo-o -,