Oxford Democrat. [volume] (Paris, Me.) 1833-1933, 1886-03-09

malice. Now Is IL necessary 10 consti-
tute the crime Of murder that malice, as
have defined !, TO you. should be shown
10 have existed toward the person killed :
For instance. II party accused formed
the design willfully OF killing A.. and
aimed bis gun or weapon a, him Intend.
ing In di.ehargins or using !, TO kill him.
and he misses A. and thereby kills h..
who l. hi. bes, friend. and against whom
he en,er,Ains no malice, be Is guilty OF
murder jus, as much. precisely. as II he
intended to kill b.. because his purpose
in doing the act !. . wicked purpose, In
dica,iug a wicked aud per,ere mind.
and he has the intention Of killing and
numbering. and !, is imma,erial whether
be seeompli,hes that purpose upon the
person whom be intended 10 murder, OF
upon another. The intent TO kill char.
Aeierirss the act. goes with II, aud II the
blow reaches any person Il carries with
IL the criminal intent 70 kill aud murder;
and II !, takes effect upon a person other
than the one intended. the crime Is made
ou, precisely the same n though tie In.
tsn,ion had been to kill and murder tho
person bit. precisely as II death had en-.
sued from tie wound inflicted. though
the intention Of the party be not TO kill
the person bit. ,,ill II hi, in,en, Is TO kill
any person. and the blow takes edse,
upon a person other than the one intend.
ed, IL /, sufficient 10 constitute the crime
Of murder II death ensues. Having thus
given YOU 20 under,end the meaning Of
the word malice. as embraced 10 the
crime Of murder. will proceed one step
further and say that b. our statute mur'
der /. divided into two uegrees. When
murder /, committed with express malice
aior,houshi. or in perpe,ra,ing or A.
tempting to perpeira,e. crime punish
able by death. Imprisonment, for life, or
for an unlimited term Of years. IL will be
deemed murder In the hr, degree. and
punishable with death When murder Is
committed otherwise than u set forth
AL have stated. and In the preceding
section Of the statute. which language |
have ju., given, II shall be deemed mur-
der in the second degree. and punishable
By impri.onmen, for life.
Now proceeding ore step further. l
will call your attention more particularly
TO the distinction between the two de.
grees Of murder. You will notice iha,
10 constitute murder in the fr, degree.
/, mus, be committed with express NAL.
ice afore,housh,,-or in perperaiins a
crime punishable by death. imprisonment
for LIE, or for an unlimited term Of years.
Now bearing in mind the two degrees, !
will say here that 20 constitute murder
In the frs, degree in this case Il i neee,-
.ary ,ha, the government, should saii,fy
YOU. beyond a reasonable doubt. that the
killing va. with malice afore,hough,
express. because the killing is 20, shown
to have been in perpe,rating OF attempt.
ing to perpe,rA,e a crime punishable with
death, impri,onmen, for life. OF an un-
limited term Of years. II is important
then. to understand the meaning OF ex-
pres. malice. and implied malice. because
they indicate dideren, degrees OF the
crime Of murder.
Ls, Us then consider frs, express NAL.
ice. whA, i, expires. maliee' Express
malice /. iha, which Is proved as exist
Ing. by the evidence submitted TO the
Jury, and in the legal sense OF the term,
a. | have already stated TO you. and not
necessarily in the popular or common
sense. Expre. malice /, defined TO be,
when one per,on kills another with Sc
date. deliberate mind. a formed design.
Such formed design. may be evidenced
by external circumstances, discovering the
Inward intention; and the mo'i usual
evidence. Of express malice are eireum-
s,An,iAl, such a. lying in wait, anisce-
dsn, msnaees. ,ha, is. prior menAee'' o.
threats, former grudges and eoaesried
scheme. 10 do the party some bodily
harm. In other words exprss, malice i',
where |, /, proved by the facts and cir
eamstanees disclosed accompanying the
&C. Of killing. by proof. either dirse' OF
eircum,,aniial. tending 10 show pre-
viou,ly formed plan and de.iga to kill.
Implied malice. on the other hand, which
indicates the nature Of the crime Of mur.
der in the second degree. say implied
malice, on the other hand. is ,ha, which
may be inferred from the &C, itself where
Il /. proved ,ha, the prisoner killed the
party and there are no circumstances, no
evidence disclosed showing the eifcum'
stances under which the act OF killing
wa. done, bu, the case Is one which
merely proves the unlawful killing with
ou, legal justification. In such a case
as that, the law implies malice from the
grave character OF the wrongful act.
ThA, !, implied maliee,-maliee implied
| from the very &C, done. IL exis,s-io'
instanee-where one intending to kill OF
MAIN one person. kills another. against
whom no injury was intended; and In
general. any deliberate attempt to COM
mi, felonious act, and death is oceA'
stoned in the execution Of such attempt,
although the original intention may no.
have been to take life. Express malice
on the other hand. Is to be proved like
any other fact. by evidence; implied
malice Is tha, which is implied from the
act, wi,hou, any evidence OF 1t except
the &C, itself. Now you will perceive
further in the definition Of murder that
the malice. whether express or implied,
must be afore,hough,. That Is, II mus,
have been deliberA,ed upon for some ap.
preciable length OF time, bu. the law
does not require any particular length OF
time in either case Of express or implied
malice. Yet there must have been some
premedi,A,ion. some previous design for
some appre:iable length Of time before
the act Is done. though Il requires merely
time enough to clearly form an intention
before the act is committed. Nov !, be-
comes impor,an, to understand and apply
this principle to this case, provided you
should find the prisoner guilty Of muir
der; for II you should 80 find. then II
would become your duty to determine
whether II Is murder In the frs, degree,
or In the second degree and As l have