Democratic Northwest. [volume] (Napoleon, Ohio) 1869-1894, 1881-11-10
NUMBER 81.

inouEh death ensue.
therefore. II the defendant used such
Meapon, IN such manner and upon such parts
OF the body or head OF Warren G.. DrtIfy as
Msuld naturally and probably cause his heath
tue presumption would arise that he intend-
ed 10 cause The death OF Warren q. Drury:
nhIle, on the contrary u he did not use such
weapon or did not use il in such manner. or
on such part Of the body or head of Warren
q, Drury as would naturally and probably
cause death, no such presumption would
arise. even though death did en-ue. and I
VIII further say TO you so as % be under
stood; that, although the instrument or
weapon used, and a vital part of the body or
head was struck and death ensucs. and it
appears from the evidence there was no pur-
pose, design or intent on the part of the de-
fehdant To fire the pistol, the element OF
purpose as required is not made out.
Your next inquiry will be 10 ascertain IL
the act OF killing was done maliciously for
have said 10 you that to constitute murder
in the second degree the act must not only
be done purposelY but IL must be done ma
liciously.
Malice Is defined 10 be the influence of
wicked and depraved mind; "a reckless and
vicious disposition to do wrong and injury TO
another without just cause or excuse. II is
distinguished from anger, hatred and ill-will
as having broader Specification than these.
Malice may be general in its nature and
manifestations rs OF mind generally de-
PRAYED and bent upon mfscnfer and crime
towards mankind In general, or IL may be
limited in its manifestations and quallfca-
tions In the influence of wrong and injury
upon particular individual against whom
the person has conceived a special hatred.
Malice may be either expressed or implied.
Expressed, when the design and manifesta-
tons of II are shown by outward circum-
stances or direct proof; orit may be implied
when the acts and conduct of the party
charged Herewith are unusual and accom-
panied with circumstances of great cruelty
An act that is done wrongfully and inten-
t1onally by one to the injury of another, and
is prompted by hatred, by a desire for re-
venge or any other wicked passion is ma-
licious. There fore, it the defendant was
prompted by hatred toward Warren G.. Dru-
~, or by desire TO revenge some actual or
fancied wrong, TO kill Warren G. Drury, and
did 1t Intentionally, without just cause or
excuse, his act was malicious.
If it is proved that one person has killed
another, the law presumes that the killing
was malicious, unless the circumstances at
tending the transaction Tebut and overthrow
such presumption. If IL be proved that one
person has shot and killed another, but the
circumstances attending the transaction
show that II was done accidentally the pre-
sumption of malice which would DO imputed
to the slayer II the act Of killing alone be
shown, will be rebutted and overthrown by
the circumstances attending the transactions
which show that the killing was done acct
dentally. Therefore, II the evidence shows
that the defendant shot and killed Warren c.
Drury, the law will presumes that he did it
unless the facts and clrcumstan-
ces attending the transaction also appearing
in the evidence rebut and overthrow such
4.a
Preparations made by one person to infliet
personal injury upon another, or to kill anotli-
er; also threats made by one person against
another, that he would injure or kill such
person. are evidences of malice. Hence. evil
dence that the defendant made threats against
Warren G. Drury, or general threats that would
include within their termsand condition War
rem q. Drury, or made preparations to injure
or kill Warren e. Drury, such evidences will
tend 10 prove malice; evidence that the act of
shooting was unintentonal, that the pistol was
discharged without design intent acknowledge
Oh the part of the defendant, tends to prove
absence or want of malice. These, with any
other facts and circumstances that may exist
in the case bearing upon the question OF
malice, are to be taken by you in your con-
sideration of the question, and fromNall these
find the presence or absence OF malice, ss the
truth shall appear.
You will therefore, gentlemen, under these
rules, examine the testimony carefully, and
II il proves beyond rea sonable
donbt (what constitutes Il reasonable doubt
will be hereafter defined or explained to you)
that the defendant at about the time men
toned in the Indictment in the county of
Henry, Ohio shot and killed Warren G. Dru-
~ purposely and malcously, and II oil these
things are so proved by the testimony, you
will be warranted IN finding the defendant
stands charged in the indictment. If, how
ever, any one of these allegations is not prov
ed to be true beyond o reasonable doubt, you
cannot find the defendant guilty OF murder
in the second degree.
II you find that the State has failed To make
out its eha.ge Of murder in the second degree
you will examine and determine II the defend
ant is guilty of manslaughter.
Mansaughter SO far rs applicable to this
case as defined by the statute is as ufolows:
whoever unawfully kills another Is guilty of
and shall be imprisoned in the
not more than twenty years nor
less than one year. t..
TO find the defendant guilty of manslaugh-
ter. you must be satisfied beyond reasonable
doubt: ,... ---.
1st. That the defendant shot and killed
Warren e, Drury in Henry county, Ohio.
about the time charged in the indictment
ID. That he killed him unlawfully and
in u sudden quarrel, or un-
Intentionally while engaged in an unlawful
act;
only to kin another unlawfully; ard II Is be
proved that one person has killed another,
aud no circumstances of mitigation are shown
the law will presume that the killing was un-
lawful and the slayer will at least be guilty %
II, however, it be shown
the killing was accidental 1t Is not unlo .ls tnss
1T is not unlawful because the nWhul'
stances showing that the act of XII ".Icuni, a :.
accidental rebuts and overthrow "ns mas
killing alone. -Pfooh Va s''o
Therefore, il in this case
ed that the defendant sho 4 ms Deen prov
G. Drury, you will then Gaho killed Wsfnet
swuy s,enSs uni la he ;ses es, G and d c
testimony establfs ,sekilling as shownt ~ "a
sufficient to o. -Aing the fact OF EilNtg ar
sumption of ,ef.hrow and reont she prs
ing alone, df9awfuiness raised by the NJ
TO yoa by e4nless thc testimony sn9m.se 3nrss
sump' 1t TO rebut and overthrow tle pr
''' .feM of rnlawfulncss, !,
g he distinction between murder in u
>ccad degree and manslaughter is, that I
constitute the crime of murder In the sec6n
degree the slayer must kill another, boob pu
posely and malicously. Both Ingredient
purpose and malice, must exist and atten
and characterize the act that ca8ses dealt
ter the slayer need only Kill another unlsv
fully. If the slayer kills another INTENTIONAL
arid unlawfully but without malice, he
guilty Of 'nhhsiahghter oniy> MS, for instanc
il the slayer, without malice, during the be-:
and passion of a sudden quarrel Intentions il
kills his opposing combatant. and If the sIa,
er unlawfully and maiciously, but uninteT
tionally kills another he Is guilty OF mar
slaughter only; az. for instance, if HliIa IL
slayer is engaged in the commission of som
uniaWiul act. snch as burglary, he unlawful,
ana maliciously. but unintentionally. xiii
another, one of the two ingredients, purDos
and malice, necessary TO constitutes the Grim
OF murder in the second degree may atten,
and char2cterize the unlawful act that cause
the death, and the crime OF the slayer will sill
be granddaughter only; but If both OF these in
gradients. purpose and malice, attend an,
charactcrize the unlawful act that cause
death, II will be murder in the second degree
IN determining if the defendant is guilty 0
manslaughter you may inquirei
"Flrst--lt the defendant and Warren &
Drury engaged in sudden quarrel, and ii so
| of such sudden quarrel, without malice, un
Itwiuliy and Intentionally k Ii Drnry. By in
.entlonally, mean tlat ne must have formet
II ms mind the desi IN or purpose SO to do
Secohd'-Did the defendant, while ENGAGE
| Ia s2me unlawfnl act, unlawfully and mai!c
iously, but unintentionally, shoot and xii
warren G: Drnry. For instance, il the de
tenuant Intentionally pointed or aimed
lOaded pistol at tho persnn Of Warren q Dru