Oxford Democrat. [volume] (Paris, Me.) 1833-1933, 1894-03-13


otlIerw lee than IL set forth Ia the prcccl'
Ing section which have Just given you,
It shsll be deemed murder 10 tho second
degree. Now, proceeding = step further
I will call your attention more particu'
lariy To the distinction between the two
degrees Of murder. and u becomes Im
portant that you should understand and
spply the distinction In the case now be-
fore you for u you should hnd the pris.
oner at the bar guilty of murder, then u
will become your duty to determine and
by your verdict declare whether u ls mur'
der In thu hrst degree or murder In th'
second degree.
You will notice that To constitute mur'
der In the first degree In the case which
you are nov considering. Il is necessary
that the government should sstisfy you
beyond q reasonable doubt that the Kill
Ing was With malice aforethought ex'
press. inasmuch AZ II 10 not shown nor u
Il clalmed that Il Was done In perpc'rat'
Ing or attempting To perpetrats crime
punishable by imprisonment for life o'
an unlimited term of years. II IL Inn.
portapt tn understand the meaning o'
express malice. ! have given you the
definition of malice In its legal sense, and
now u becomes equally important that
you understand The meaning Of m when
the prefix or qualifying term stands be-
fore lt--cxprcss-and then you viii un'
der stand the meaning Of express msllcc,
which IL necessary To bc proved by the
government before verdict can be- rem
dere,i for murder In On. first degree.
II ll...l all a
they Indicate the two dlfiercnt desrccs
Of murder, I give you their definitions
let ne consider frat s(prsss mslicc, or
that malice essential 20 constitute mur'
der In the frst degree. Express malice
is that which Il proved u existing by
the evidence submitted to the jury aud
In the legal sense of the term as ] have
already stated to you, and not necesssri'
" In the popular sense. Express malice
IL defined 10 be- when one person Nils
another with sciate, deliberate mind
aud formed design. such formed des'gn
may be evidenced by external circuui'
stanccs discovering the Inward Intention
aud the mo.t usual evidences of express
malice are circumstAntial, such ne living
In walt, anteceient menace. or threats,
former grudges and concerted schemes
,o do the party some bodily harm. IN
other words, express malice IL where u
IL proved by the facts and circumstance
disclosed which accompany the act ol
killing, by proof either direct or circum.
stantial, Tending To show q precoucciyed
aud previously formed plan aud design
Ia Kill. You can imagine cases where q
person lies In walt or has Q grudgs
against another and IL IL proved In ths
case, and threats have been made and
mcnaces. There IL Q formed design Ia
Nil the party, aud 10 such case the Jury
would be warranted In saying that there
Was express malice, malice aforethoaght,
and In that case they would be war
rantei In finding verdict Of murder Ia
the frat degree where death results In
consequence of such acts.
What I. implied malicei Because by
these deanltlons the two degrees ol
murder are distinguished. Implied
malice on the other hand, In con,radis.
tinction To express mallce--implied
malice or that which characterize
murder In the second degree-is that
which may be implied, inferred, fronl
the act of killing itself. Where u u
proved that the prisoner killed the party,
and there are no circumstances, NO evil
Deuce disclosed. showing the circum'
stance. under which the act of killing
Was done, but the case V one which
merely proves the unlawful killing w..'
ou, legal justification, In such . case a.
that the law implie. malice from the
grave character Of the wrongful act.
That 4. what is termed implied malice
no proof Of formed design, anteceden'
menacc., grudges, lying In walt or any
thing Of that Kind ar nature.
Express malice IL proved Ike any
other fact, by evidence. Implied malice
4. that which IL implied from the ae'
without any e,ldenrc Of IL except the
very act Itself.
Iha,e ssid that implied malice IL that
which IL implied from the act without
any evidence of IL except the act it.eii
IL exists, for Instance, where one Intend
Ing 90 kill or main one person Nils an
other to whom no injury Was Intended
OF In general any deliberate attempt Ia
commit a felonious act, and death l. oe'
casioned In the execution of such at
tempt, although the original Intention
may not have been to take life, but only
to commit the felonious act.
You will perceive further In the deii'
nl,iou Of munler that the malice whether
express or implied must be Aforethousht
That IL, II must have been d.liberaied
upon for some Appreciable length ol
time. To constitute. murder H ] have
aid aud illustrated, it must lie done
With malice aforethought, either express
or Implied. have given you the deflni
ton Of malice and Of express and Inn
piled, and I now proceed Ia the defini.
ton Of aforcthought. To constitute
malice sforethought, whether express ol
implied, IL must have been deliberated
upon for some spprcciable length OF
time, but the Law doesn't require any
particular length Of time In either case
of express or Implied malice. IL does
not require q minute, or an hour, yet
there must have been some premedits'
tlou, some previous deslgn for some ap'
preclable length of time before the act u
done, though II requires merely time
enough "a clearly form an Intention be.
fore the act IL committed. IL may b
done In q moment, but Il must be ne
have said sufficient length Of tlme-an
apprecisble length Of time before the
act IL done.
I have given you this definition OF
murder In the frat and second degree
the elements necessary To constitute tina.
crime, and before proceeding further
Will Aiso give you the definition Of man
slaughter. You will perceive that by
our statute manslaughter IL the unlaw
full killing Of q human being In the hesl
Of passion, on sudden provocation, With
out express or implied malice aforr
thought; or whoever commits man
slaughter az defined by the common iA~
shall be guilty Of msnsisughter, and
puplshed In the manner the statute pro
vides. Therefore We have the statutory
and the common law definition OF man
slaughter. The statute says that who
ever unlAwfully kills . human being Ia
the heat Of passion on sudden piovocA
ton without express or implied m,llcs
aforethoug ght, shall be deemed guilty ol
manslaushter. Il sometimes happen,
that there IL q homicide or killing, and
an unlawful killing, where there 10 nc
malice such ~ ] have defined, ethel
express or implied, and that 10 man
slaughter. a party gets Into . guarre
and strikes another down In the heat ol
passion and that would constitute volun
tary mansiaughter 40 defined by thu
statutes. Manslaughter st common Law
may be defined to be the unlawful ant
felouIous killing Of another without any
malice either express or Implied.
| Manslaughter at common lsw differ
from murder In this, that though tbs &C
which occasions the death be unlawful
vet the malice either express or implies