The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1885-07-11


tent to do an unlawful act without lega
justification excuse.
Express malice can never be inferred. bu
must always be proved beyond a REASONABLE
Gonbt. 1t consis: in cases Of violence of al
ill-will against the individual. attacked
which may be formed rapidly and immedi
ateiy preceding the violent act, but must b.
settled and deliberate and not arising out o
a sudden heat Of passion. Whereas, i'm
Piled malice may be inferred from all the
facts and circums tances disclosed by the
evidence the trial, but it does not exis
when there has been any cOnsdera!f pro.
vocation, nor unless the assailant eX:.. bited
/ both an abandoned and malignant heart
that IS, a heart depraved, inhuman, bru IA
and destitute OF ordinary feeling.
All murder which is perpetrated by means
of POISON or lying in wait, torture, or by
any other kind of willful, deliberate and
premeditated killing, or which is committed
/ IN the preparation or attempt to perpetrats
arson, rape, robbery, burglary or may hem,
/ is murder of the first degree, and all other
{ kinds Of murder, are of the second degree.
The distinction between the two degrees
of this offense is, that in murder of the first
degree, unless it was committed i'll perpe-
tratinG or attempting to perpetrate arson,
rape. robbery, bursla or mayhem, the
killing must be deliberate and premedi-
tated, whilst in murder of the second degree
the killing is not deliberate OF pFemeditated
In the first, there is deliberate, premedi-
ia ted and preconceived design, which may
be formed in the mind immediately before
the mortal blow Is given, to take life. In
the second, there is neither delibera ton,
premoditation nor preconceiycd design to
kill, but in either there must be an unlaw-
full killing, accompanied with malice.
But where there is no deliberate, precon-
ceyed intention, excepting that implied
from circumS amces showing considerable
proyocation, nor an abandoned and malig-
nant heart, or if the accused did not intend
to produce death but intended tho blow. it
would be murder in the second degree, if
death were the result.
DeliberatiOn implies some degree of re-
Election, but no appreciate space of time
need intervene between premedida ted in
tent and homicidal act. At the moment
Of the act. reflection and generalization may
take place. No definite rule can he laid
down as to the length of time necessary to
constitute deliberation and generalization.
1t varies with persons and circumstances.
In some minds a minute would be as eff
fectual as Il month.
Under the foregoing definition of the
crime of murder, and which applies with
equal effect to assault with intent to COM
nit that offense, these questions arise for
you to determine: Had the defendant space
and opportunity for reflection Did he
think over what he was about to do? Was
his mind sedateIy and considerably made
mp to take the life of NJ II. De Young,
charged in the information, and without
legal jus Utica ton excuse.
If you find from the evidence that these
facts have been proved beyond a reasonable
doubt to a moral certainty, then your YER
diet should be guilty; or, without these
particular facts, if you find that the assault
charged was made purposely and malicious
ly, and without legal justification or excuse,
the defendant would be guilty of the offense
alleged against him.
In every crime public offense there
must exist union OF joint operation of act
and intent or criminal negligence. The
concurrence of an evil act with an evil in
tent, to constitute what the law deems
crime, is a universal doctrine, and therefore
the unlawful in tent with which an unlawful
act is alleged to have been done, must be
proved with the same degree of certainty
Of he apt
other material fact alleged in the inform
alton.
The intent or intention is manifesto ted by
the circumstances connected with the
offense and the sound mind and discretion
of the accused.
All persons are of sound mind who are
neither idiots, nor lunatics, or affected with
insanity.
Persons belonging to certain classes are
declared by law to be incapable of commit
ting crimes, and among these are lunatics
and insane persons. l will instruct you
further as to these hereafter.
When the act is proved to have been done
by the accused if it be al act i'll itself I'M
lawful, the law in the first instance pre-
sumes it to have been intended, and the
proof of justification or excuse then lies on
the defendant to overcome this legal and
natural presum ptiOn.
BY keeping these principles cons family in
mind, in connection with the evidence, you
may readily ascertain what facts have been
proved to you beyond reasonable doubt on
the part of the prosecution, as we'll as those
which have not been established, with like
essen iaI certainty. In this manner alone
you can reach just conclusion on the issues
involved i'll the caEse here on trial.
1 will now direct your attention to an
other grade of homicide defined by the laws
of this State. namely, that of manslaughter
This is the unlawful killing of human be-
ing 1oittout malice, and is not murder.
Manslaughter is of two kinds:
1. Voluntary upon 1t sudden quarrel
heat of passion.
2. InvOluutary-in the commission of an
unlawful act not amounting to felony; or in
the commission of a lawful act which might