The Stark County Democrat. [volume] (Canton, Ohio) 1833-1912, 1886-11-04

that county; that he ls dead and that he
came to his death, not by his own hand
or any natural cause, but by reason Of
the mortal wound or wounds inflicted
upon his person by the defendant, In the
manner and form and by the means
mentioned and described In the indlct-
ment.
These are questions Of fact to be as
certained by you from the evidence In
/ the case, and IL the State has failed to
establish all of them to your satisfac-
tion beyond the existence Of reason
| able doubt, the defendant could not be
convicted and 1t would be your duty to
acqult him.
What then are the essential elements
of the crimes charged in this indict-
mentp By the law Of this State, whoever
purpOsely and either of deliberate and
premeditated malice, or by means of
poison, or In perpetrating or In at
tempting to perpetrate any rape, arson,
robbery or burglary, kills another, Ia
guilty of murder In the first degree.
Under the first count, 1t Is essential
to q conviction Of murder In the first
degree that 1t appear that the defendant,
In the manner and form charged, at the
time and place charged, killed the said
Perry Harrington, unlawfully, felOni-
ously, purpOsely and of deliberate and
premeditated malice. An act Is done
unlswfully when done In violation OF the
law. To do an act fel0niOusly Is to do 1t
criminally. The word purpose" ls used
III the statute In Its plain and ordinary
Specification. 1t means an act done in
tentiOnRlly, not accidentally or by mis-
chance. 1t imports an act Of the will,
an intention, design to do an act.
Ordinarily the purpose to kill Is to be
gathered or deduced from the circum-
stances under which the killing was
done. If the instrument used in inaict-
ing the mortal wound was deadly
weapon and 1t is wilfulIy used In man.
ner palpsbly calculated to destroy life,
the jury may infer the intent or purpose
to kill by such use Of the weapon. 1t Is
general principle that what man
Wilfully does he intends to do and in
tends the natural consequences of his
voluntary acts, unless the circumstances
in particular case show the absence
of such intent. The presence Of intent
or purpose Is question of fact to be de-
termlned by the jury from all the cir
cumstances proven. Moreover, 1t must
have been done with deliberate and pre-
medit8ted malice. This requires that the
purpose to kill, having been formed In
the mind, has been deliberated and pre-
meditated upon before the act of killing
was done; that 1t was revOlVed In the
mind beforehand. The law fixes no
time during which such deliberati0n
and generalization shall take place. 1t
need not be any great length of time,
but you must be satisfied from the proof
that the defendant had deliberated and
reflected, that he understood and real.
lied what he was about to do, and had
formed the design to do 1t, and If he had
so purpOsed, deliberated and reflected, 1t
Is sDfi ,ient, although but short time
elapsed after such generalization and
deliberatlOu before the act Of killing. 1t
must have been an act of deliberatiOn |
and premeditated malice. The word
''mallce" In Its ordinary acceptatl0n is
apt to be associated with the passions of |
anger, hatred or the desire Of revenge |
In contemplation of law, malice may,
and frequently does, exist, without the |
presence Of either Of these passions Dr /
desires. In law, malice signifies will |
full design to do another an unlawful |
injury, whether such design be prompt
ed by deliberate hatred or revenge, or by |
the hope Of gain, or springs from the
wantOnne5s or depraVity Of heart re-
gardless of social duty and fatally bent
on mischief.
II, therefore, you are satisfied beyond
the existence Of reasonable doubt that
the defendant, on or about the l7th day
of December, 1884, 10 the county and
state aforesaid, in the manner and form
mentioned and described in said first
count Of the indictment, did unlaWfully
purposely and of deliber-
ate and premeditated malice, kill and
murder Perry Harrington, then he is
guilty of murder In the first degree un-
der said count. II you have a reason
able doubt as to any one or all OF these
elements Of murder In the first
degree, as charged in the first count of
the IL Indictment, 1t will be your duty to
acquit the defendant of the crime of
murder in the first degree as therein
charged.
Murder in the first degree is also
charged In the second count Of the In
1ictment, but you will notice that the
facts which constitute murder In the
first degree as charged In the second
count Of the indictment differ essen
TALLY from the facts constituting mur-
der In the first degree as charged In the
first count. In both counts 1t Is charg
that the defendant killed and murdered
said Perry Harrington unlawfully, fell
and puTpOssly. In the first
count 1t is aveTred that he did 1t Of de-
liberate and premeditated malice. In
the second count 1t is aVeTred that he
killed said Perry Harring on In the at
Tempt to perpetrate robbery. In or.
der that the defendant may be found
guilty of murder In the first degree, iRs
charged in the second count, 1t must ap-
pear that he did, on or about said 17lh
lay Of December, In the county and
State aforesaid, unlaWfully, felOni0usly,
purpOsely and In the attempt to perpe-
trate robbery, kill and murder Perry
In the manner and form and
by the means In that count mentioned
The words unlawfully, feloniousIy and
Durposely have the meaning already de-
fined In the instructions concerning the
first count.
What then is meant In charging the
Dffense as having been committed In the
attempt to perpetrate q robbery Rob-
berry consists In stealing and taking
from the person of another anything Of
value, by force and violence, or by put
ting the person in fear. To attempt q
robbery Is to endeaVor to execute OF at.
tempt that offense. To constitute an
attempt to perpetrate a robbery as
averred In the second count, 1t is not es-
sential that the acts resulted in obtain.
Ing money, but 1t is essential that they
we're done In the direct and immediate
execution Of previously formed pur-
pose or intent to perpetrate the robbery
charged. To steal is to unlawfully take
and carry away the personal goods of