The weekly clarion., 1881-05-26
SAMUEL HAwTHoRNE,
V. Ne. 1868.
The STATE.

? The STATE.
Error to the Circuit Court Of Ware
. County, Hon. Upton NJ. Young, Judge.
In October. 1880, plaintiff in error wa
convicted Of murder and, in accordanc
with the verdict Of the jury, sentenced t
Imprisonment in the penitentiary for life
The only questions considered by To
Supreme Court were in reference to tbs
instructions.
The accused was tried under the statut
defining murder as follows:
"The killing Of a human being withOu
the authority Of law by any means, or in
any manner = . z when done with !
deliberate design TO effect the death Of the
person killed, or OF any human being" s.
Code 1871, 2625.
On the trial, at the instance Of the
district attorney, the court gave the jury
the following instructions, that were speci-
ally objected 70 by the defendant
"2 Murder is the killing of a human
being with malice aforethought. = y
"5. Malice may also be implied from the
deliberate Use Of a deadly weapon. And il
the iury believe from the evidence beyond
that the defendant shot and killed the de
ceased with deadly weapon, and that such
. killing was done deliberately, then the
law will imply the malice requisite to
I murder, and the burden ofshoWing that the
killing was not malicious will be upon the
defendant, and unless he does this TO the
satisfaction of the jury, they will find him
/ guilty of murder"
rs. Malice may also be inferred from any
Z #cfr of harhYrirv and rrnpifv
attending the killing, and if the jury be
lieve from the evidence beyond every rea-
souAbie doubt arising thereirom, that
defendant killed deceased, aud chat he did
it in a cruel and barb3rOus manner, then
the law will declare the killing TO be ma
licious and therefore murder, and it viii
then deyolve upon the prisoner to show that
IL vas done either in the heat Of passion lin
which case il would be manslaughJer,) or
that il was done in the necessary defense
Of himself"
For the defendant the court gave the
following instruction, among others;
80 The law presumes that the prisoner
is innocent and the burden of proof is on
the State to show that he is guilty; aud if
upon all the evidence the jury eutertain5 a
reasonable doubt As to whether the killing
proceeded from a murderous intent on the
part of the prisoner, on the other hand
from the principle of self defense, they
must find the prisoner not guilty"
In the 4th charge the fact. favorable to
defendant were set out at length, and the
jury were instructed that if they believed
the hypothetical statement thus made they
should find the accused not guilty
On behalf of appellant it was contended
that the vrrds, "deiibcrate design" in the
statute defining murder had mean
ing different from the words, ''maiice Qforc-
thought" and implied that there must be
an actual design to kill and murder; also
that the doctrine of implied malice, E. 9.
malice implied from the use of deadly
weapon, so far as applicable to murder
cases, was abolished, and that in all hom- !
cdes where there was no express malice |
the ofIense could not be greater than man
slaughter under our statute.
Among other things, it was also objected |
that the instructions to the jury had the
effect of shifting the burden of proof from /
the State to the defendant when the fact of /
killing was shown, and that as a whole the |
charge, were misleading and erroneous.
CAMPBELL, J.
Held
l. The law implies malice from the un-
lawful use Of deadly weapon, and every
homicide by the use of such weapon is pre-
sumed to be murder.
,. The Act of 1899, Hutch. Code 954,
our first statute on the subject, uses the
phrase "'premeditated design" III defining
murder. In the Codes of 1857 and 1871
the language is, deliberate design" These
phrazes are equivalent to and mean the
same thing as malice atorethought."
1t is sufficient to charge in an indictment
for murder "that the defendant did, felOn-
ously, wiifully and of his malice afore-
thought, kill and murder the deceased"
Code 1871 2S02
3. We reject the suggestion that our
statute alters the common law as to implied
malice, and that murder is limited by the
statute to killing with express malice.
/. The fifth and sixth instructions for
the State announce that it devolves on the
prisoner to show the circumstances which |
excuse his act. They are erroneous in
emitting the qualification, unless they
arise out of the evidence produced against
him"
Besides this, he fifth instruction declares
that the burden of showing that the killing
was not malicious was upon the prisoner
and that, unless he did this to the satisfaction
Of the jury, he was to be found guilty. 1t
not only imposed on the accused the duty
to show that the killing was not malicious
but suggests that he must furnish a prepon-
derance Of evidence in support of this mega
tive. This was error
If in view of all the evidence, there is a
reasonable doubt as to the character of the
killing, the prisoner must be acquitted. 1t
is not incumbent on him to prove his inuo-
ceuce. The State must prove that he Is
guilty.
D. In Head . The State A Miss, ,731 lit is
said that in cases like this the accused Is
guilty Of murder, "unless he has by his eCj
delce proued excuse or Justification" And
in EUaHs q. The STATE, "A Miss, 762, it was
held to be necessary after the State had
proved the killing, for the accused to show,
by clear and satisfactory proof that there was
an actual necessity for killing the deceased.
We disapprove this doctrine.
g. The settled rule is that all the instruc-
tions are to be considered together, and, il
as a whole, they correctly announce the
law, reversal will not occur, although
some of the charges in themselves may be
incorrect. But 1t should very clearly APP
pear that any error in the instructions for
the State was elIectually corrected and cured
by instruction for the accused bearing on
the point.
I. We can not say with confidence that |
the vice in the instructions for the State was |
effectually cured by those given for the ac-
cused. Error was committed against him. |
1t is not certain that it was completely re-
moved
s The frequency with which erroneous |
instructions for the State escape notice in |
the circuit courts is deplored- This most |
frequent cause of reversal in this class of
cases should be guarded against.
Judgment reversed as'o trial a'cariei.
II. F. Simrall, L. w. Magruder, Il. V.
Booth and NJ Marshall, for plaintiff in er-
ror.
T.C. Catchings, Attorney-General, con-
ira.
To be reported.
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