The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1888-02-19

, | tempt to perpetrate any arson, rape
, burglary or robbery. or perpetratet
from premeditated design, unlawful,
and maliciously to effect the death o
any other human being, other than n
who is killed, or perpetrated by any &C
greatly dangerous to the lives of others
and evidencing a depraved mind re-
CARELESS of human life, is murder in the
first degree; and any other homicide
committed under such circumstances a.
would have constituted murder at com
mon law, is murder in the second de
gree"
Section 1921 defines manslaughter
"ManSlauehtel the unlawful killing
of human beiLg ithout malice. II i.
of two kinds. Firt-Voluntary upon
a sudden quarrel or heat of passion
Sec ond-[nvoluntary, in the commits
sion of an unlawful act
| NOT AMOUNTING TO FELONY
or in the con mission of a lawful act
which might produce death, in an I'm
lawful manner .or without due caution
and circumspection.
| While the killing shown by the evil
dence in this case was lmme diateiy af-
i
| tercatiOn attended with heat of passion,
1t cannot be said that it was not in pur-
suance of specific and distinctly
formed intention to take the life of the
| deceased. There being an intention to
Kill and no prOyOcation to justify or
| excuse it, tie killing must have been
malicious, unless the passion was so
| great that the intent resulted from it
| and the Intention was without thought
and the act of killing proceeded from
| the passion alone or so nearly alone,
that the passion could be said to be the
| controlling source or author.
The unlawful Killing of a human
| being with malice aforethought ives
| murder at common law Section 1919
above quoted describes two classes of
| murder and distinguishes one as muir
der in the first degree and the other as
| murder in the second degree. And
again it distinguishes certain kinds of
homicides as murder in the first degree
by the act, The intent, the object. and
the circumstances or b one or more of
| these. 1t describes one kind of murdsr
in the first degrees by the measure
alone the amount OF deliberation
| which precedes it. The intent rs
sential TO murder is the state of mind
the intention at the time Of the act
that causes death. The law
DOES net REQUIRE DEL:DERAr1ox
after the intent and before the act of xii
ling. 1t does require that the man shall
be able and have al opportunity to think
about the killing, that he may deliber-
ate and mediate upon it; and whenever
the elaboration is sufficient 10 form
therefrom a specific and wel!-iefined
intention to Kill the person afterwards
slain, it is enough to characterize the
killing as murder in the first degree.
On the contrary, If the action OF the
| mind is so lmpeded and hindered by
passion, intoXication or other sufficient
cause, that It cannot, during the time
intervening, sufficiently think and de-
liberate upon the act and its conse-
quences, as to be able TO form distinct
and perfect int ntion IN the light OF
thought and reason, the Fermentation
is not sufficient to characterize the
crime as murder in The first degree.
No man, who had not the capacity or
was not free to reason and think about
the act, and who had not adequate op
portunity to form distinct and def
mite intention in the light thereof, ought
to be deprived of his life for an act
flowing from such an intention. AS a
general rule, the law disregards acts
and their consequences that do not fol-
low intentions. Therefore, an individ-
ual is not bound by an act to which he
had no opportunity or capacity to form
an intention. And with respect to the
crime of murder, the
WANT OF DELiBERATIoN AND PREMEDI-
TATIoN
palliates the crime to murder in the
second degree, tough the killing was
Intentional and malicious. When
the act of killing does not proceed from
malicious intenti n, but does proceed
from passion or is the result of negi-
gence the crime is reduced to man.
slaughter. The law abates and yields so
much on account of human in6rmities.
We are of the opinion that the evil
dence authorized the jury to find that
the appellant with the capacity and OPP
portuDity to reason and with premedi-
tation formed specific and distinct in
tenrion to take the life OF Cullen and
therefore to find him guilty OF murder
in the first degree.
Lie pIOpOSlLlOu Ol INV LudI QOmlClO6
is murder in the frs5 degree when the
person killing had the opportunity and
the capacity to deliberate upon the act
and to form specific and distinct in
tention from such deliberetion is sup
ported by the following authority:
Bishop on Criminal Law, sec. 72S.
Keanan ys. Commonwealth, Penn.
State, 55.
Wharton on Criminal Law, vol. Q, sec.
1881 1106.
State VS.. Bealobe, Il CAL, 3S9
State VS.. Williams, 43 CAL, 344.
THE APPELLANT EXCEPTS
to the following portion CT the charge
of the court to the jury and assigns the
giving thereof as error: ITO reduce
homicide to the degree of manslaughter
on the ground solely that it was com
mitted in the heat of passion the pro-
vocation must have been consider
able; in other words such as
was calculated to give rise to
irresistible passion in the mind of q |