Richmond dispatch. [volume] (Richmond, Va.) 1884-1903, 1889-07-06

specified WAYS gnarftf. In the first degree. II
therefore follows that all other grades OF
homicide so committed are murder IN the
first degree.
Is an indictment for murder by. poison
necessarily sustained by proof OF bomi,,
eide by poison--intentional homicide, 4
meani Certainly not. Homicide by pol
son is not or Vi ts7mtni murder, and tne
grade Of the offence is b be determined Dy
the evidence in each case. II will be MUIR
der II the essential nurderous element OK
malice exists either expressly or by ilnpl-
cation, and being murder, by force OF the
statute IL is murder in the first degree.
And malice il NAV be said. cannot be I'M
piled invariably from the use OF poison.
II is the calm. deliberate, and ma
licious killing by poison which az
common law is murder and undeI
our statute is murder in the hrst
degree But suppose a person should slay
his assailant with poison casually a. mana
under the quick impulse Of the Juror ofr'S'
and under circumstances from when
malice could not possibly be presumed,
this would be voluntary manSlaughtcr
equally as If the homicide had been IN any
other way committed.
IL is readily conceivable that poison may
be used in self-defencc. These PROPOSE
tions are certainly true. II is their rarity
principle.
The crime of murder in the first degree
Is not a creature of the statute. III exists
at common Law independently OF the
statute receiving its name only from the
latter. In the words Of Mr.. Bishop: These
statutes do not change the former bounds
of murder. but what, and only what; was
murder before is such still. In oTdei 70
constitute the crime Of murder IN the brst
degree the common law elements OF muir
der must exist, and in addition the murder
must be committed in one of the ways emu
merated in the statute 1T must be proved
that the killing was OF such Character
that it would under ordinary clrcuin-
stances have been murder at common law
and If the fact that this murder was COM
mitted by poison, lying in wait, &c, exists
that fact will make case OF murder IN the
first degree under the statute. But should
the killing not be Of that character the
mere fact that poison. starving etc, were
the means of producing death cannot con-
stitute the crime of murder In the hist dc-
gree, but the killing will he manslaughter
or excusable homicide, according 10 the
facts of the case.
The text-writers cite the case OF the two
shipwrecked sailors who eudeavored to
save themselves on the same board, but
one Of them finding that the board was IN
sufficient for both pushed the other Will
fully, deliberately, and pTemedltatedly
into the sea. This was held to be sclt-dc-
fence. BY analogy, if these two seamen
had secured a portion of the provisions,
which was insufficient TO sustain both until
relief could be brought, and one had con-
fined the other and starved him in order to
preserve his own life, tins would also nave
been self-defence, or practically the same
thing. | merely mention these cases IN
illustration of the proposition that all KILL
ing by starving. or wilfully, deliberately,
and premeditatedly. is not necessarily
murder Of the first degree. The murder
must exist independently Of the statute.
Strangely enough the statute seems to be
understood as making all killing by poison,
&c, all wilful. deliberate, and premedltated
killing, and all killing in the commission OF,
&C., murder in the first degree, instead or
making murder 80 committed murder III
the first degree.
If this view Of the law be correct, 1t Is
submitted with Difference that 1t is erro-
ments for murder in the first degree by any
of the specific means" the accused must
be convicted of that crime or acquitted.
II would be proper to instruct that II they
believe murder has been committed by any
Of those means enumerated III the statute,
they must find guilty of murder IN the first
and not in the second degree but whether
or not the evidence proves murder or some
inferior grade of homicide must be left
primarily 10 the discretion of the jury.
Yours respectfully,
EDWARD p. BUFORD.