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

y
lays down the definition in the first volume
of his Law Dictionary, at page IS3, that
= As applied to otienses, capital signifies
those punishable by death"
Murder is defined in the Penal Code at
Section ISL as the unlawful killing of a
human being, with malice aforethought
Such malice may be express or implied
1t is express when there is manifested
deliberate intention unlawfully to take
away the life of q fellow. creature. 1t is
implied, when no considerable provocafion
appears, or when the circumstances attend
ing the killing show an abandoned and
malignant heart" Therefore. | shall take
the ground that there can be murder with
malice, the intentional taking of life, and
yet not be murder III the first degree; that
every killing which is done with malice
and done with intent to take life does not
murder in the first degree; that
express malice is q thing that must be
proven like any other fact in the case; and
that to establish implied malice yau must
show an abandoned and malignant heart, a
williul and depraved mind disposition
to take human life without cause or pro-
vocation, or else you must establish kill
ing without considerable proyocation.
Whenever considerable provocation enters
into the killing whenever tie killing does
moi show depraved and abandoned heart
and the circumstances proved do not show
reconciliation and deliberation and clear
intent to take life with malice, it is not
murder ofthe first degree, bat may be muir
der OF the second degree | will now read
from the case of the People vs. Crowev, $50
Cal. 40). This instruction in that case was
given:
If the jury find that John Crowey and
I N - God
gagged i'll combat upon equal terms. and
after the deceased had declined any further
combat, but before the passion engendered
in the mind of Joha Crowey by the conflict
had had time to cool, John Crowey struck
the deceased an additional blow or blows,
not ruth dangerous lceapoR, by reason of
said passion, he is not guilty of murder
" These instructions. as wOrded by defend
ants counsel, did not contain the words
italicized, but they were changed by the
Court before given to the jury, and the
words or dangerous weapon used were
inserted in the nineteenth instruction, and
the words not with dangerous weapon :"
were introduced into the twentieth instruc-
ton
The effect of these instructions, as we I'M
dersiand them, is, that if one party slay
another in the heat of passion and without
II a dangerous ,Gedp0l is used. Such, in our
opinion, is not the law. Whether the kill
ing is murder or manslaughter. does not
depend upon the fact whether or not
dangerous weapon was used and 10 make
the character of the crime depend, not upon
the intention with which the act was done.
but upon the character of the instrument
by means of which the death-blow was in
fiicted. is not, in our opinion, justified by
any legal principle
In the case of Erwin VS. the State 100
Ohio St, 1866, the following instructions
were held erroneous: If you find from the
evidence that the defendant used a deadly
weapon in this case, and that death ensued
from the use Of such deadly weapon. then
the law raises the presumption of malice
in the defendant, and also an intent Oh his
part to kill the decedent The Court saws
This was not an abstract proposition. 1t
covered the case before the Jury, and. in
our opinion, jury of ordinary intelligence
might well understand that the law fixed
TIE guilt of the defendant as murderer, if
the evidence showed that he took the life
of the deceased by the use of deadly
weapon, without regard to other circum-
stances
MALICE Is NOT PRESUMED.
AS an abstract proposition, where the
circumstances of a homicide are not known
further than The mere fact that the death
was caused by the use of a deadly weapon,
we do not deny that the jury may, from
such fact alone, infer both malice and a
purpose to kill. But where the attending
circumstances are shown IN detail. some of
which tend 10 disproye the presence of
malice or purpose to kill, it is misleading
and erroneous TO charge Jury that in such
case the law raises q presumption of malice
and intent TO kill from the isolated fact that
death was caused by the use of deadly
weapon. In such case the presence of NAL
ice or intent to kill must be determined
from all the circumstances proven, includ-
ing, of course the character of the weapon.
THE case of Cotton The State 81 Miss.
500, is also in point In that case it was
held that the qualification by the Court
made to the third instruction was clearly
erroneous. The Court says: The in
struction is, in substance, that if Cot on
killed Smith not in pursuance of pres.
meditated design, but on sudden quarrel.
the crime of murder is not made out. The
modification made is, unless Cotton sought
the quarrel and used "A deadly weapon. !"
The question was whether malice prompted
the accused to kill. He interposed, as his
defense, by the instruction, mo design To
kill, aud that the killing was on a sudden
quarrel The Court says to him that this
Is no deiense-not even to mitigate the
crime. if ht sought the quarrel and used
deadly weapon. Now, he NAV have done
both, without being guilty of murder, for
he may not, by seeking the quarrel have
intended the slightest personal injury to
the deceased, and he may, from sudden
provocation, have used his weapon
In the case of The People vs.. Freel AS
Cal, 1876 the Court instructed the jury as
follows: You will also observe that the
difference between murder and man
slaughter is, that in manslaughter there is
no intention whatever either to kill or to
do bodily harm. The killing is the unin-
tentional result of sudden heat of pas
sion, or of an unlawful act committed with
out due caution or circumspection.' This
Court held This is clearly erroneous
Whether the homicide amounts to murder
or manslaughter merely does not depend
upon the presence or absence of the intent
to kill. In either case there may be IA
present intention to Kill at the moment of
the commission of the act. But when the
mortal blow is struck in the heat of pas
sion, excited by quarrel, sudden and of
sufficient violence to amount to adequate
provocation, the law, out of forbearance for
jne weakness OF human nature, Will diSrc-
gard the actual intent and will reduce the
offense to manslaughter. In such case,
although the intent to kill exists, it is not
that deliberate and malicious intent, which
IS an essential element in the crime of mur
der. :"
Now, reading from the case of The Peo-
pie vs.. Long 90 Cal, pages sos and 696l we
find the same doctrine enuuciated.
The defendant was convicted of murder
in the first degree, and has appealed from
the judgment On the trial, the Court af-
ter reading to the jury the statute deiini-
ton of murder in The first and second de-
grees, charged as follows Murder, there
fore, of the first degree, has in it the ingre-
dent of malice towards the person killed !;
and also deliberate and premeditated in
tention to take life. In murder of the Sec
ond degree there is the same degree of
malice as in murder of the first degree and
the killing is done unlawfuuy. but without
the intention to take life A fter defining
the crime of manslaughter, the Court then
proceeds as follows Thus you have the
three grades of crime included in this in
dictnlent First, murder of the first degree
which is an unlawful killing, accompanied
by malice and by premediJated intention
which is the unlawful killing. accompanied
with malice, but in it was no intention of
taking life, for the reason that as soon as
that ingredient enters into the killing it
becomes murder of the first degree
This charge was excepted to by the de-
PENDANT and is relied upon as error on the