The daily gazette., 1878-12-09


ledgment that he was the actor in this
Dreadful and most disastrous tragedy, he
IL certainly guilty of one or the other, ct
fhe degrees of murder ~ we have defin-
ed them to you. In addition let me saw
to you and enjoin you 20 bear In mind,
in your consideration of the case, that ali
homcides not justifiahle or excusable
land The one you are considering is nei-
ther) are, IN point of law, malicious; and
also that every sane man is conclusively
presumed in law to contemplate, that is,
intend or design, the natural aud prob
able consequences of his own acts. III arley
u. Brown, then, If you disbelieve his state
ment of purpose certainly designed to kill
his victim by the obstruction to produce
the collisiOn-which would be express
malic aforethought and murder ofthe first
degree-or he had a general malignity or
design OF mischief and recklessness of
consequences to the lives and persons of
individuals, under the circumstances of
imperilment shown by this case, that
would bring him within the description
OF those who are enemies of all mankind
persons regardless of social duty and
fatally bent on mischief, and therefore
guilty of implied malice, or OF the crime
OF murder of the second degree. 1t is
you, gentlemen, to say of which of these
crimes, if of either, yon think the priso-
ner to be guilty. If, however, you f. ell
constrained, after all that has been said
OF the law, to believe the statement, the
prisoner in your charge made of his mo-
tive, and thus reach the conclusion that
there was no premeditated wicBedneSs in
his act you may find him guilty of man
slaughter only and We proceed to define
that offence to you.
Manslaughter is the unlawful killing
of bar x.yifh hnn M Ifna .ill,
or implied-or without premeditation.
This is its general definition. 1t is also
manslaughter, where one in doing an
unlawful act, not felonlous nor tending to
great bodily harm, undesignedly Kills
another; or in doing lawful act without
caution or requisite skill. Thus, if per-
son upon sudden heat ofpassion caused
by great provocation kill another, the
law, if there be no circumstances show
ing malice adjudges the offence to be
merely manslaughter. So if one shooting
at another's poultry, and without intent
to steal them, accidentally kills a man, it
is but manslaughter; so If he threw a
stone at another's horse and accidentally
kill man; so, if one playing merry, but
mischievous prank cause the death of
another where no serious hurt was in
tended as by fitting up cart, or the like,
1t is manslaughter. But il the sport in
tended was dangerous, and likely in itself
to produce great bodily harm, or to cause
a breach of the peace. these circumstances
might show great malice, and fix upon
the party the guilt of murder. These are
instances OF manslaughter where the act
of the party is an unlawful one. But
though the act is in itself lawful, yet If
done in an improper manner-whether it
be by excess or culpable ignorance or
want of due caution, and death ensues, it
will be manslaughter. Soft will be man.
slaughter if a person is killed by igno-
rance, gross negligence, or culpable in
attention, on the part of one assuming 20
be his physician, or surgeon, or by gross
negligent driving of cart or carriage, or
the like Encouragement of a boat; or by
gross carelessness in casting down rub.
Dish from ascaffold or the like. And
generally 1t may be laid down that where
one, by his negligence, has contributed
to the death of another, he is irrespen-
sible. The caution the law requires Is
not the utmost that can be used, but such
as is used in like cases, and has been
found by large experience, to answer the
end. You will observe therefore gentle-
men that where death ensues from an
act although not of evil or wicked pur-
pose, but clearly unlawful, 1t is man
slaughter in him who perpetrates it, and
would be murder if occasioned by such
purpose, whichis is malice.
We have gwen you gentlemen the
laws of this State, taken from the books
of authority, on the subject of the two
different kinds of murder and of man.
slaughter; and also examples to guide
you in your duty of making up verdict
upon the facts in evidence before you;
but that there may be no want of knowl-
edge, or misapprehension on your part,
we repeat
LIST. That where one in pursuance of
any deliberate purpose or plan, OF taking
another's, or doing him some great bodi-
ly harm, kills him, he is guilty of murder
in the first degree; so If he purpose to com
nit an act punishable with death, and in
the execution Of such purpose he kills
another.
2nd. Where there is not the evidence
of any such purpose or plan, and yet a
person is killed in consequence of fe-
lonious act on the part Of the accused, or
of an act that denotes disregard or reck-
lessness, of the lives and persons of in
dividuals generally, it is murder ofHe Sec
ond degree, and all homicides above the
grade of manslanghter and not reaching
thai of murder of the first degree are
murder of the second degree.
3rd. Where there Is no malice or evil
design either in fact or in law, and yet
death ensues from merely unlawful act
OF from a lawful act done In an improp-
er manner whether by excess or eulpable
ignorance, the offender is guilty of man
slaughter.
In connection with this it is proper to
saythat the prisoner at the bar was unlaw-
fully upon the track of the railroad COM
pany; he had no business there, but was
a trespasser and his act of obstruction was
an aegravation of his trespass. There
fore should 1T turn out that you find your
selves Unable to bring him in guilty of
one or the other degrees OF murder you
should convict him OF manslaughter.
And let me repeat to you that he would
be clearly guilty Of murder OF the first
degree If he intended the death of George
Babes the engineer on that railroad
tram, and aimed at the attainment of his
purpose by his act of obstruction; or of
murder of the second degree even if he
had no actual intent to produce death,
but meant evil or mischief of any kind
by his conduct; or of maDslaughter, be-
cause viewed In any light his act was an
unlawful one.
Whether the crime Of the prisoner at
the bar is reducible to the grade of man
slaughter depends entirely upon your be-
lief of his motive as he gave 1t, for
placing the log, or tie upon the track of
the railroad. If you do not credit that
he is guilty of murder in the first degree
if he Intended to kill George Babes or do
him some great bodily harm; of murder
in the second degree if his act was one of