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

or imbecility) that the appellant was &
man of ordinary capacity, he should
| have controlled such passion as 6
reasonable man could restrain and
would be likely to restrain.
IT is VERY DIFFICULT A
in many cases to distinguish man
slaughter from murder. The act that
caused death may have been wilful but
death may not have been intended.
The intention to kill may have
been formed and life taken during
rel or amid or imm ediately after
Violeuce and excitement. In order to
determine whether the accused in any
given case acted from reason or passion
the provocatlon, the weapon used, if
any, the preparation for the act, his
expressions and all the circumstances
must be considered, and although it ap
pears that the act proceeded to some
extent from malice upon reflection and
calculation and to some extent from
passion, that will be held to be the cause
which had the prepOnOerating influence.
Passion to some extent, almost always
influences the slayer. when the fatal
wound is given during or loon after g
quarrel or fight; aod conversely NAL
ice to some extent influences the party
killing in either case. But the law
charges the act to malice or passion as
the one or the other is found to be the
preponderating cause of the act. In
sscertaining this fact, as all others in
criminal cases, the jury must give the
accused the benefit o. any reasonable
doubt. The passion must be such as
is sometimes called irresistible; yet it
IS too strong to say that the reason of
the party should be dethrored or he
should act in
WHIRLwIND OF PASSION.
There must be sudden passion upon
reasonable provocation to negative the
idea of malice. And the passion must
proceed from what tho law accepts as
an adequate cause, else it will not re-
duce the felonious killing to man
slaughter. Bishop Grim. Law, vol. 2,
Sec. 697. We find no error in giving the
portion OF the charge above quoted.
The defendant also alleges as error
the statement to the jury of the follow
ing principle of law: When insanity
is relied upon as defense to criminal
charge, the burden is upon the defend
ant to establish 1t, unless the evidence
on the part of the prosecution tends to
establish it. The test of responsibility
for criminal act, when unsoundness
of mind is set up as defense, Is the
car acity of the defendant 10 distinguish
between right and wrong at the time of
and with respec. to the act which is the
subject OF inquiry" The law presumes
that the mind is in its normal condition
until some evidence Of unsouudDess or
imbecility appears.
We understand that the capacity of
a person accused of crime to determine
whether the criminal act was right Or
wrong is the correct test of responsible
ity. If a man with ability TO refuse kills
wrong. he is responsible to the law for
the act. We are of the opinion that
this exception is not well taken.
The court in substance stated to the
jury that the law will not permit per-
son who commits crime while intoxi-
Gated to avail himself of his own
"GRoss VICE AND MISCONDUCT
as justification therefor. Appellant
excepted to the use of the terms Ibis
own gross vice and misconduct" and
assigns the same as error. This was
statement of the law with respect
to hypothetical case. In it the Court
did not say. as counsel urged that he
did, that the appellant had such a gross
vice, or that he had been guilty of such
misconduct. The Court characterized
drunkenness as a gross vice and as mis-.
conduct. The Court informed the jury
that drunkenness, if proven, might b.
taken into consideration IN determining
whether the homicide was wilful and
premeditated, end that the weight to
be given to such fact, if found, was for
the jury, d that they should receive
evidence thereof with caution, and
carefully consider it in connection with
all the evidence in the case. The jury
were told to carefully consider the evil
dence of drunkenness with all the other
evidence. In this We find no error,
THE COURT PERMITTED
w. 81. Dickson, private counsel, to aid
the Assistant District Attorney in the
prosecution of the defendant. This
action of the court the defendant as
signs as error. Counsel for appellant
refer to subdivisions 2, and 6 of sec
ton 257. Criminal Code, Laws of Utah.
1878: The prosecuting attorney, or
other counsel for the people, must open
the cause and offer the evidence in sup |.
port of the indictment.
When the evidence is all concluded, un
less the case is submitted to the jury on
either side, or on both sides, without |