Daily Kennebec journal., 1881-05-14
THE MERRILL TRAGEDv
Judge Whitehoases Charge to the Jury.


OF Judge whitehouse to the jury:
Gentlemen Of the Jury:
Inc prisoner at the bar stands CHARGED
with the highest crime known to the laws of
nature and Of civilized society. He stands
charged with the crime of numbering the
mother who bore him. 1t is claimed by the
government that in the cruelty of the act it.
self and IN the gross insensibiliry which char
aeterized his subsequent efforts 10 conceal
the evidence of his guilt, his conduc, an
pears more heinous and revolving than any
thing IN the history OF modern crime. ON
the other rand the respondent. wlfle he a!-
mlts the act of killing, claims that the act
was committed under circumstances that
would reduce it from murder to man
slaughter
Inc prisoner is presumed to be innocent,
until he Is proved to be guilty. This pre
sumption follows him throughout the trial
The burden is upon the government 10 salts
Y you of his guilt beyond reasonable doub,
lhis doubt Is not mere possible or imay-
mary doubt. Proof beyond reasonable
doubt Is that which gives YOU full satistac-
tion and makes you morally certain of the
truth Of the charge, So that vou feel that vou
do the respondent no injustice in rendering
'erdict against him.
Murder is the unlawful killing OF a human
being with malice aforethought either eN-
pressed or implied When murder is COM
mitted wit expressed malice aforethory,,.. il
shall be deemed murder of the first degree
Section 3 of the statutes provides that .swhen
murder is committed otherwise than is set
forth in the preceding section. il shall be
deemed murder of the second degree" Man.
slaughter is defined as the unlawful killing
of human being in the heat of passion or
sudden prOvocaton without express or i'm
piled malice afnrethought. What do we mean
BY malice in this definition of murder? In its
popular Specification it is indicative of feel
lngs OF malevOlence. hatred. hostility. ill-will
resentment desire ftr revenge. desire to in
Jure. This is not the sense in which it is
used in this connection. 1t NAV mean that
hut it is not incumbent upon the government
to satisfy Won of any such actual malice In
its enlarged legal sense. it is used to charac-
terize anv act done with an evil disposition.
with an unlawful and wrongful motive: the
unlawful doing of an injurious act without
Just cause or excuse. In the language of an
ancient writer, sit is imputed to any act
flowing from wicked and corrupt motive;
any act done under circumstances indicating
a heart regardless of social duty-and fatally
bent upon mischief" But a more concise
definition is. ''anv act, done wilfullv and pur-
posely to the injury or prejudice of another
which is unlawful, and wrong is, as against
that person, malice"
Now malice aforethOught is the element
required in this definition of murder. What
is meant by aforethought? That the act
must be thought of and determined upon be-
fore it is committed. There must be DELHI
Grafton sufficient to form purpose. design.
an intention to commit the act. No definite
period or considerable period of deliberation
is required. 1t may be done in an instant
SO rapidly does the mind act in forming its
purpose and so swiftly does the hand move in
obeying the mandate of the will and executing
the purpose of the mind that single moment
may be sufficient to intervene between the
formation of purpose and its execution. If
a man fully forms the purpose, though in
stantly, when the opportunity ispresented. or
the temptation appears. to take the life of an
other. and it is carried into effect without
lawful excuse, there is malice aforethought
If there is specific intention and design to
take the life of that particular person, formed
with a sedate mind. that is express malice
aforethought, as required in murder in the
first degree. For express malice is defined
to exist where person with sedate and de-
liberate mind takes the life of another per-
son.
Now we cannot search the hidden springs
of action by which the heart is moved. We
cannot look into the heart and see what the
motive or design is. We have to determine
the persons motive design. purpose and inten-
ton by external circumstances, by his con-
Guct, by his acts. Therefore this formed de-
sign or specific intention to take life is
evidenced bv external circumstances. such as
lying in wait. former grudges, previous
threats, concerted schemes to take life: the
deliberate selection and use of deadly
weapon. and blow inflicted by it upon
vital rar.
What is implied malice. which. character
ICES murder in the second degree? Every
person of sane mind. actngauPon motives.
is presumed to intend the natural and neces
sary and probable consequences of his acts.
If one voluntarily and willfully does an act.
the direct tendency of which is to
DESTROY life the natural and necessary
inference is that he intended so to destroy
such persons life. If the direct tendencies of
the act is to do some great bodily harm, and
vet death does in fact follow from that act as
a natural and probable consequence, still 1t
will be presumed that he intended that nat
ural and probable consequence. Proper re-
gard for the protection and safety of human
life requires that this rule shall be enforced
Thus it is that when a man unla~fulIy and
intentionally kills a human being and there is
no evidence arising from the proof of that
killing tending to show to the contrary. the
law implies that it was done malciouslv. and
il will be murder. on the principle that anv
act done wilfullv and purposely to the injury
of another. and the taking of the life of an
other is an injury in the highest degree
known to the laws of nature and society. and
being unlawful and wrong. it is, as against
that person. presumed be be malicious
Therefore. the act of the killing being proved
and there being no other evidence in relation
to the act tending to show any deliberatlon,
any formed design with a sedate mind, the
law would imply this malice. and it would he
murder in the second degree. This lmplled
malice also exists in cases of great cruelty
and malignitv. indicating as | have SAID.
heart regardless of social duty and fatally
bent upon mischief.
After illustrating this by examples, the
Judge proceeded:
Whoever kills a human being IN the heat
of passion on sudden provocation without
express or implied malice aforethought, COM
mits manslaughter. The great distinction
between murder and manslaughter is this ele-
ment of malice either express or implied. III
is not every provocation which Will reduce
the crime of taking the life of human be-
ing from murder to manslaughter Ii must
be a great and adequate provocation. IL Is
H. InU