The record-union., 1891-02-18
Scatini at, or soon before the stabbng, it
would be malice aforetbOupht


| aforethought, and was the willfiil, delib-
crate and premeditated act of the de-
| fendant, you should find verdict of
guilty of murder in the first degree; and
| IN such case you may, if you think
| proper. fix his punishment to be impris-
onment for life. If, after a full consider
alton OF all the evidence, you should not
| be satisfied that the killing was an act of
| dellberatlon and premeditation, and that
| it was without malice, your conclusion
| should be that the killing was not murder
| in the second degree. On the contrary,
| if, after such consideration, you should
/ be convinced beyond reasona BILE doubt
| that the killing was an act done with
| malice afOrethought, but without deliber-
alton and premeditation, you should find
verdict OF guilty of murder in the sec
ond degree.
"Ifyour conclusions should be in favor
| OF the defendant upon both these ques-
tions of whether the killing was murder
of the first or of the second degree, you
will then consider whether the killing
was the crime known as manslaughter. 1
have already charged you that man
slaughter is the unlawful killing of
human being without malice. If the
killing was unlawful and was the volun-
tary act of the defendant upon sudden
| quarrel or heat of passion without malice
or premeditation, it would be man
slaughter. The defendant does not deny
that at the time and place stated in the
| information he inflicted the wound that
| Killed Scatlnl; but he AYERS and claims
| that the act was committed in necessary
! self-defense. If it be true that the act was
| so committed, then it would be what the
law declares to be justifiable homicide.
''If, after full consideration of all the
evidence, you do not believe that the act
| OF the defendant was murder of the first
| degree, and do not believe that it was
murder OF the second degree; but, if after
such consideration you do believe that it
was an act committed by the defendant
from necessity, in
| DEFENDING HIS LIFE,
Or in defending himself from great bod
lily injury, then he should be acquitted by
a verdict of not guilty. The killing of
! Scatini being proved and admitted, it is
incumbent upon the defendant to prove
circumstances of mitigation or that JUS
| tify or excuse it. The law as laid down
in our code upon this subject is as fol-
lows: Upon trial for murder, the COM
mission of the homicide by the defendant
being proved, the burden of proving cir
cumstances of mitigation or that Justify
| or excuse it, devolveS upon him, unless
the proof on the part of the prosecution
| tends to show that the crime committed
only amounts to manslaughter, or that
the defendant was justifiable or eXcusa-
ble.' Although the burden of proof is
| upon the ueieIiuait, YET, IL upon con-
| Slderatlon of the whole case you enter
tain a reasonable doubt from the evidence
OF his guilt, he should be acquitted.
1.-The law recognizes the right of man
to defend his life when it is in imminent
danger; and also to defend his person
from an imminent danger of suffering
great bodily injury, even to the taking of
the life of his assailant, when that is
necessary. The danger must be actual, or
| the circumstances must be such as to
make it appear SO to the mind of a rea-
sonable person. This extreme right of
self-defense rests upon the necessity of
! the case. The law permits it only when
does not actully exist, the circumstances
must be of such
THREATENING CHARACTER
AS to create in the mind of reasonable
person a well-grounded belief that his
| life is in Immediate danger or that he is in
! immediate danger of suffering great bod
/ lily harm. If the defendant actually be-
lieved, upon good and reasonable
grounds, that Scatini was about to kill
him or was about to infiict great bodily
injury upon his person, at the time when
he struck the fatal blow, and that such
| blow was necessary for his safety, then
he was justifiable; but if he had not at
that time good reason for believing, or
did not believe, that Scatini was about to
/ <
upon him, then the law does not justify
| the act.
'Much has been said by counsel on
| both sides upon question as to whether
!Scatini owed Frediani S6. Now this ques-
ton is wholly immaterial, and you should
not allow it to divert your attention from
the real issues of the case. The fact that
there was dispute between them about
| it may be considered, but you are not
called upon to decide the merits of that
question.
"You are the sole judges of the evil
| dence. The court is not permitted to eX-
press any opinion upon its weight or
effect, and in considering the evidence
you are the sole judges of the credibility
| of the witnesses. You must consider all
the circumstances under which each wit
ness teStifieS, and determine the truth of
the statements of each Of the witnesses
| upon consideration of all of the other
testimony in relation to such statements.
The defendant, as he has a right to do,
has testified in his own behalf. You
should give such credence to his state
ments as in your judgment they are en-
titled to under the circumstances in which
he is situated, and in connection with the
other evidence before you in relation to
statements made by him.
WHEN TO DEFEND.
IF you believe from the evidence that
Scatlnl was about to kill the defendant,
or that he was about to do great bodily in
jury to the defendant to prevent either
of which the defendant struck the fatal
blow, you will find the defendant not
guilty. If you believe from the evidence
that the actions of Scatini just before he
was struck were such that a reasonable
person in the situation of the defendant
would believe that Scatini was about to
kill him, or to do him great bodily in
jury, you will find the defendant not
guilty. Where the code says that homi-
eide is justifiable in resisting an attempt
to do great bodily injury, it is obvious
that 1t does not mean every injury which
causes pain, nor injuries which are not of
a serious or permanent character. 1t is
not necessary for me to illustrate by eX-
ample what are great bodily injuries, and
what class of injuries are not of that
character. The expression, "great bodily
injury" is easily understood. 1t is not
reasonable to suppose that the law would
permit the taking of life to prevent
threatened injury, unless such injury was
OF serious character-such an injury as
is aptly described as being great bodily
injury.
1T is proper in this connection to say
that it is immaterial whether the kick on
the leg was great bodily injury or not,
| as that occurred at another time and
place, and some five or six hours before
Scatini was stabbed. I consider that [
would fail in my duty if did not in
struct you that the expression great
bodily injury used in the law to which 1
| have referred, does not embrace within
| its meaning such acts as the slapping of
ones face, or the pulling of ones nose or
beard, or any slight blow which does not
cause serious injury"
| nJTT ATT Nrnur