Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1886-03-27

fiuiQcl vi tIlS iiISl utSIEe tltcIG iuuSt DC
not only an intention to take life, but il
must be a deliberate and premeditated
killing; nor is it true that in murder of
the second degree there must, of necessity.
be an absence of ali intention TO take life.
On the contrary, the true distinction be-
tween the two grades is, that in murder of
the first degree, unless it was committed il
perpetrating or attempting to perpetrate
arson, rape, robbery or burglary, the killing
must be deliberate and premeditated,
whilst in murder of the second degree the
killing is not deliberate or premeditated.
In the one case there is deliberate pre-
meditated, preconceived design, though it
may have been formed in the mind imme-
diately before the mortal wound was given,
to take life. In the other case there is no
deliberdtion, Fermentation or preconceived
design TO kill. In both, however the kill
ing must bave been unlawful and accom-
panied with malice.
" We think the charge of the Coart may
have misled the jury i'll respect to the
proper distinction between the two grades
of the otfense. People VS.. Sanchez, q
Ca, Is; People vs.. Foren, % Cal, 36I;
Pc iple VS.. Nichol, "a Cal pa W
| will read short extract from the case
of ex parte Wolf, (57 Cal, 95):
The petitioner is charged with the crime
of murder, alleged to have been committed
in the city and county of San Francisco on
the thirtieth day of October, 1880. The
evidence shows, or tends to show, that the
petitioner used certain drugs, and employed
certain mechanical means upon the person
of one Benedicta Swenson with the intent
to procure an abortion, from the effects of
which she died. The committing magis-
trate held the petitioner without bail, and
this is an application to the Court to admit
him TO bail.
Article |, Section 6, of the Constitution
declares, that all persons shall be bailable
by sufficient sureties unless for capital
of1enses where the proof is evident or the
presumption great
SIS this a capt. n case, in which the proof
is evident or presumption great? If it is
not, it follows that bail should be taken.
1t is claimed on the part of the prosecution,
that the evidence proves that the prisoner
has committed the crime of murder in the
first degree, and such must have been the
views taken by the Police Judges Court.
Section 1S9 of the Penal Code provides,
that all murder which is perpetrated by
means of poison or lying in wait, torture,
or by any other kind of willfui, deliberate
or premeditated killing, or which is COM
mitted in the preparation or attempt to
perpetrate arson, rape rob berry. burglary,
or mayhem, is murder of the first degree,
and all other kinds of murder are of the
I
second degree.
The case of the People VS.. Nichol (3i
Cal, p. 2i4) is an instructive one ON this
subject The Court there says:
- In this class. the Legislature leaves the
jury to determine, from all the evidence
before them, the degree of the crime but
prescribes for the government of Their de
alterations the same test which has been
used by itself in determining the other two
classes, to wit the deliberate and precon-
! ceived intent to kill. 1t is only in the lat
ter class of cases that any difficulty is expe-
rienced in drawing the distinction between
murder of the first and murder of the sec
ond degree The unlawful killing must be
accompanied with a deliberate and clear
intert 10 take life, in order to constitute
murder of the first degree. The intent to
kill must be the result of deliberate pre-
meditation.
/ also wish to call your Honor's attention
to a case in the 10 Pennsylvania Reports at
page ioS. 1t Is the case of Jones VS.. the
Commonwealth. The decision goes on and
states the facts at great length, showing
that there had been an i'll will engendered
between the parties on account of some
misconduct of the wife, and thai he had
taken to drink. The Court then said:
Thus we must perceive, that at the bot
tom OF all that has been said on the sub
ject of murder in the first degree, is the
frame of mind in which the deadly blow is
given-that state of mind which enables
the prisoner either to know and be fully
conscious of his own purpose and act or
not to know. Why is insanity defense TO
| homicide? Because it is a condition of the
mind which renders ii incapable of reason
ing and judging correctly of its own i'm
| pulses, and of determining whether the
impulse should be followed or resisted. In
tellisence is not the only criterion, for it
often exists in the mailman in a high de-
gree, making him shrewd watchful and
capable of determining his purpose and
selecting the means of its accomplishment
Want of intelligence, therefore, is not the
only defect 10 moderate the degree of
oflense; but with intelligence there may
lie an absence of power To determine
properly the true nature and character of
the act, its effect upon the subject and the
true responsibility of the actor power
necessary to control the impulses of the
mind and prevent the execution of the
thought which possesses it. In other
words, it is the absence of that self deter
mining power, which in q sane mind rem
dcrs it conscious of the real nature of It's
own purposes and capable of resisting
wrong impulses. When this selfgoverning
power is wanting. whether it is caused by
| insanity, gross intoXication, or other con
trolling influence, it cannot be said truth
fully that the mind is fully conscious of its
own purposes. and deliberates or premedi.
tates in the sense of the act describing muir
der in the first degree. We must, however
distinguish this defective frame of mind
from that wickedness of heart which drives
the murderer on to the commission of his
crime, reckless of consequences. Evil pas
Sions do often seem to tear up reason by
the root, and urge on to murder with heed
less rage. But they are the outpourings OF
a wicked nature. not of an unsound or dis.
abled mind. 1t becomes necessary, there
fore, to inquire upon the evidence in this
! case whether the prisoner was really able
to deliberate and premeditate the homicide.
I VIM. S. Jones had been upon bad terms
with his wife. She had become too init
mate with another Jones, named Charley
Looking then at the state of Jones mind
| from the 10th until the 10Th of June, and
down 10 the very moment he fired the pis-
toll, and, also, at the stlddenness of his
/ quarrel with Mrs Hughes her call for the
! poker and lifting the stool, it seems to rs
matter of grave doubt whether his frame of
mind was such that he was capable either
of deiiberation or reconciliation. 1t APP.
| pears to have been rather the sudden i'm
pulse of a disoriered brain, weakened by
potaiionS of iaudanum and spirits, and of
| distorted mind, led away from reason and
| Judgment by dwelling upon the conduct of
his wife, influenced by his continued state
of excitement. 1t presents a case of the
! preparation of a weapon, and an unde-
/ lined purpose Of violence to some one.
when the time for reflection was ample;
! but where IL. frame of mind was wanting
| which wouii enable the prisoner to be
;. fully conscious of his purpose, or to resolve
/ to take the Etc of the deceased, with DELHI
| alton and premeditation"
Reading now from the case of ex parte
| Moore, $50 Indiana, 201), the Court say:
We held in ex parte Heffiren ca Ind
/ 81, that in this class of cases it was proper
that we shv I'D weigh the evidence and de-
termine the facts, as if trying the case
originally.
To cor siitute the crime of murder either
in the first or second degree, malice is an
essential ingredient. 1t is true that where
one person, unlawfully and purposely,
/ kills another, malice in the absence of re-
/ butting evidence, is presumed from the act
| But when no express malice is shown, and
/ it appears that the act, though voluntary,
/ was the result of a sudden heat or trans
! port of passion upon sufficient provoca-
! ton, 1t rebuts the presumption of malice,
and reduces the offense to manslaughter.
" Here it appears that no quarrel or diff