Delaware gazette and state journal. (Wilmington, Del.) 1883-1902, 1886-02-18

10 from the testimony and the instructions ,
re tho court upon the law. He then define
1T the term malice which Is necessary to col
.. stitute case of murder OF tho llrst degre,
es as follows:
"a Malice. Where there is deliberat
Intention TO do, unlawfully, any bodil
"a harm to another, this is malice in fac
~ express malice.
of "The evidence of such malice must arls
1t ftOm external circumstances discnyern
d the inward intention-sucha as lying IN wait
J. antecedent threats, former grndges, jelil
"a crate contrivances, and the like, which ar
various according to variety of circum
stances"
Where such malice prompts the act q
violence which results In the death @
f another, the slayer is said to have acte,
with express malice aforethought, and to b
d guilty OF murder of the first degree.
Every homicide, or killing by one man o
! another, which Is done with deadl,
weapon, or one likely to do great bodili
harm, is IN law presumed to he mallcioui
Q homicide, and Is murder of tho first, ol
: second degree; unless done under tha In
huenee4of sudden and Immediate pns4ion
or heat OF blood, or in the lawful dt,fnuct
by the slayer of himself, his family, or III,
habitation. There are homicldes ilisti ed
by law, as the hanging Of prisoner by d
sheriff In the course OF his duty. Nc., but Il
Is not necessary to speak further " such.
J Wherever homicide with deadly weap N
cannot be excused on the ground Of self
defence, or justified by defence Of family on
habitatlon, or shown to have bo,n com
milted In heat OF blood arising la q sudden
and unexpected nffray, or from u III provo
/ cditon as an ordinary person Is inc lpable of
enduring, 1t is n malicious homicide, and
murder, OF one or the other OF the degrces
thereof.
have already stated to you what tho law
calls malice. 1t is state or condition of
the mind and heart, most commonly shown
by acts of revenge or Of cruelty. This con-
dition is innate wlckedness. A man who
has 1t is said to be bad-hearted, dangerous,
| revengeful. A good-hearted man Is one
without this state of the heart. You say of
such n one rs the latter, he doesn't bear
malice. There's the distinction between the
| two-the one is malicious, in the sense of
being revengeful or cruel, the other is not.
This kind OF malice is that which prompts
/ him who has 1t, to lie in wait for one who Is
| the subject Of his vindictiveness, TO assail
| him with deady weapon; to prepare and
| lay poison for one, or give 1t to him in his
| food, &c. 1t is express malice aforethought
"a preconceived, predetermined, purpose
| to kill another, or to do him some enormous
| bodily harm. Where the circumstances of
/ the death disclose such purpose, then the
conclusion cannot be resisted, that the
crime is murder Of the first degree.
Murder Of the second degree is where
slain, and yet the act that did it was Il de-
liberate, cruel one; or performed while the
| accused was committing or attempting to
commit felony in law. In these cases, the
| homicide is a malicious one-for II shows
| that depravlty of the heart which Is ma
liciousness; but, in the absence of evidence
of preconceived design to take the life de-
| stroyed, 1t is not by law murder of the first
degree, but Is murder of the second degree
l lave given you, along with the deflni-
| ton OF murder, sufficient think to enable
you to distinguish between the different de-
greos OF that crime; and also to understand
that malice is wfckedness- kind of
wickedness that can compass, or intend,
the death OF another, and adopt the means
to bring 1t about, which is express malice;
or do some cruel, or felonious act, from
which death ensues, which is implied
malice.
1 will now speak of manslaughter, and
tho law of self-defence.
Manslaughter Is the unlawful killing OF
another without any malice whatever, The
common description Of the offence or rather
example OF it, is where two men fight upon
a sudden affray, and one kills the other
with deadly weapon in the heat Of blood
or passion, occasioned by the encounter. In
such case, the law. taking account of the in
! flrmity OF human nature, treats the offence
| MS of less grade than either of the degrees
of murder; but it In no sense excuses the
punishment by fine and imprisonment
| But, if there be anything in the conduct of
| the slayer which shows that the killing was
| not from the passion excited by thecon1ict,
but that such conflict was made the occasion
or was sought for the purpose of enabling
him to be revenged upon his opponent on
account OF some prior difficulty, then the
offence would not be manslaughter but
murder and that of the first degree If
there be a long standing quarrel or grudge
between two men, and they accidentally
meet, and have fresh quarrel with
which the old one has no connection, and
one slay the other in the heat of the strife,
IL Is but manslaughter ;but If the old grudge
had anything to do with the quarrel the
homicide would be murder, and Of the first
degree, because the old grudge was malice,
which found expression IN the slaughter.
The stroke, or shot, connected itself with the
grudge, and was malicious. 1t was part at
least of the passion or rancor that caused
the death, and that Is enough. Again. where
by arrangement two men meet to fight each
other, and one is killed, the other is guilty
OF murder of the first degree, because the
fight was premeditated; and as both had
gone TO 1t prepared to use deadly weapons,
II makes no difference who struck the first
blow. Duels are of this class. All homicides
are by law presumed to be malicious where
done with deadly. weapon; therefore, In
case OF homicide, where the pri-
soner Is shown to have use such
weapon In producing the death of tho victim,
his guilt of the crime of murder Is COM
plete, unless he oun show and tho dutyto do
it Is mt once cast upon him, that the killing
was in the heat of blood in mutual combat
between his adversary and himself; or that
he was obliged to slay him to protect him
| self from being slain, or receiving great
bodily harm; or to render the same kind of
protection to some member OF his family;
| or defend his habitation against violent and
4 l-w.aa IL.
| he must do, although no evidence has been
given of any express malice, such as hatred,
| grudge or revenge. Where, however, there
| is such evidence OF previous quarrel
| between the parties, producing standing
| ill-feeling, a condition of hostility, II there
be proof of facts, or circumstances, to show
that such ill-feeling, or hostility, was an
element OF the contest, or WINS influential
in promoting the staying, the offence would
| be murder. The question in such case
| would seem to be, would tho pris-
oner have killed his enemy If there had
been no previous hostility between them
| If the answer should be no, then it was not
heat of blood produced by the fight that
| ealsed the death, but the old grudge. The
| fight was made the occasion OF gratifying
| previous ill-will or hatred.
| The law of defence is shown by n COM
mon example, or illustration, thus; If one
| be suddenly attacked by another with a
| deadly weapon, or other instrument likely
to cause death, or some great bodily harm,
or lie Is so situated that he has no other
means OF escaping the fury of his adyur-
| sary than by taking his life, he may take
such life; in other words he may save his
own life, or limb at the expense OF the life
Of his assailant. This is the law OF neees-
sity; the supreme right which all men have
of self-protection, and which oyerides all
the law against taking life.
1t has doubtless been seen that before
this paramount right can be lawfully eNer-
cised IL must he made appear that there
| We're no other means Of security. II there
were, then the slayer would be guilty of
crime. If he can retreat from his adversary
he is bound to do it, and he may not turn
npon and kill him, until retreat will no
longer be availing A man is not to be allowed
to kill another because that other Is en-
deavoring 10 kill him, unless his life cannot
be protected otherwise. He must endeavor
In the best manner the circumstances allow
to escape him before he can kill him. When
one has retreated as far as he can, and
effort to do moro would endanger his life he
may then become the assailant in his turn,
and may slay his enemy. If one endeavor
to assail another with a club, or other like
weapon, dangerous, or deadly, the
about him to do so in, should
get out of the way. This is very
hard for spirited man 10 do; but the law
requires of him, before taking life, that he
shall do so, II he can't taking no account
OF tho difference between men in point of
spirit or bravery or their sensitiyeness to
insult, but requiring of all alike that they
shall not kill, unless life Is incapable OF
} being protected or the body secured against
great bodily harm in any other way. The
, law is very tender OF human life and will
/ nnt allow that of an naqflanf a,at, 20 ha