Daily Republican., 1886-02-15
THE CHARG {.
An AnLE AnD eOMPRERENBIvK
DOCUmENT-THE LAW RELAT-
ING TO HOMECxDEB.
THE FULL TE X 7.

In the Talley case by Chtef justice
Comegys, is an able and comprehensive
document, and at the request OF several
lembers OF the bar is published In full.
The Chief Justice, after warning tho
Jury not to allow themselves TO be
influenced by the passionate appeals Of
counsel on either side, proceeded rs
follows:
Where there 10 deliberate Intention
TO do, unlawfully, any bodily harm 10
another, this is malice In fact, express
malice.
1.-THE evidence OF such malice must
arise from external circumstances dis
covering the inward Intention such as
lying In wait, antecsdest threats, Tor
mer erudges, deliberate contrlvances,
and the like, which are various, no
cording to variety of clrcumstaIces."
Where such malice prompts the cot oi
violence " hich results In the death of
another, the slayer is said TO have acted
with express malice af0rethought, and
10 be guilty Of murder Of the first
degree.
Every homicide, or killing by one
man OF another, which Is done with q
deadly weapon, or one likely 10 90 great
bodily harm, 10 In law presumed TO be
y mhtAClOub uOtutOAhCf Rho AS AZ -
the first or second degree; unless done
under the In fiuence Of sudden and i'm
mediate passion, or heat of blood, or In
the lawful defence by the slayer OF him
self, his family, or his habitation. There
are hnmicides justified by law, as the
hanging of q prisoner by sheriff In the
course OF his duty, 60, but ~ 10 not
necessary TO speak further of s1oh.
Wherever homicide with q deadly
weapon cannot be excused ON the
ground Of self-defence, or juslifed by
defence OF family or habitation, or
shown to have been committed In heat
of blood arising in p sudden and IN.
expected affrsy, or from such provoca
tion as an ordinary person is incapable
OF enduring, II is n malicious homicide,
and murder OF one or the other OF the
degrees thereof.
/ have already stated to you what
the law calls malice. 1t 10 state OF
condition OF the mind and heart most
commonly shown by acts Of revenge or
OF cruelty. This condition Up innate
wick ed ness. A man who hasit, Is said
to be ad-hearted, dangerous, revenge.
full. A good hearted man is one with,
out this state of the heart. You say of
such an one as the latter, he doesn't
bear malice. There's the distinction
bet yeen the tWo--the one is malicious,
In the sense Of being revengeful or
cruel, the other 10 not. This kind OF
malice Ia that which prompts him who
has It, to lie In wait for one who Is the
subject Of his vindicitiy eness, To assail
him with deadly weapon; I'd prepare
and lay poison Tor one, or give II TO him
| in his food, SC. Il Ia express malice
aforethought--a precouceived. prede-
termined purpose to kill another, or to
do him some enormous bodily harm
Where the circumstances OF The death
disclose such purpose, then the eonclu'
sion cannot be resisted, that the crime
is murder Of the hrst degree.
Murder OF the second degree is where
there Ii no actual intention to Kill the
party slain, and yet the act that did II
was deliberate, cruel one, or perform
cd while the accused was com mmittni
or attempting TO commit felony IL
tlay. In these cases, the homicide Is
malicious one-for ii shows that de-
tpravity of the heart which is malicious
meas but. in the absence of evideno'
| of pracon ceived design to take the lif'
destroyed, 1t is not by law murder o
the first degree, but is murder OF tn
second degree.
have given you, along with the def
milton of M urder, sufficient think Il
enable You TO distinguish between tn
different degrees OF that crime AM
also to understand that malice In wick
sdness-the kind of wickedness tina
can conn pass, or intend, tho death
another, and adopt the means TO brinI
| IL about, which Ia express malice o
do some cruel, or felonious act, tron
!, which death ensues, which Is implied
malice.
will now speak OF manslaughteI
and the law of self-defence.
Manslaughter Ia the unlawful KILN
of another without any malice what
ever. The common description Of til
offence or rather example Oft, is wher
two men fight upon a sudden affray
and one kills the other with a deadl
] weapon. In the heat of blood occasion
ed by the encounter. In such case, tn
law, taking account of the hfirmity
human nature, treats the offence as G
4 less grade than either of the degrees
murder but 1t in no sense excuses tn
toffander, He is still amenahle to sever
punishment by fine and imprisonment
But,if there be anything In the condue
Iof the slayer which shows that the Kill
ling was not from the passion excite
iby the conflict, but that such condit
was made the occasion or was sough
for the purpose of enabling him to b
lrevenged upon his opponent on accouI
a of some prior difficulty, then the OF
fence would not be manslaughtel
: but murder, and that Of the first d.
n gree.
II there be long standing quarrel
IN nd
cidently meet, and have fresh quarr
with which the old one has no come
Ition, and one slay the other In the hei
of the strife, 1t is but manslaughtel
but il the old grudge had anything
do with the quarrel, the homicit
would be murder, and Of the first d.
gree, because the old grudge was malic
81 which found expression In the slaughte
y The stroke, or shot, connected itse
with the grudge, and was maltoiou
1t was part at least of the passion
Irancor that caused the death, and tn
is enough. Again, where by arrang
ment two men meet to fight each othe
and one Ia killed, the other is guilty
murder of the frat degree, because q
fight was premeditated and as bo
had gone to 1t prepared t0 use dead
weapons, IL makes no difference wi
struck the first blow. Duels are OF th
class.
All bomicides are by law p-esum,
to be malicious where done with
deadly weapon; therefore, In case of
homicide, where the prisoner Is show
40 have used such weapon In producil
the death of the victim, his guilt Of y
crime of murder is complete, unless
can show, and the duty to do 1t Is
once cast upon him, that the killing "
in the heat OF blood in O mutual comb
het ween his adversary and himself;
n ~ xyau ohliued to slay him to pI