Fort Worth gazette. [volume] (Fort Worth, Tex.) 1891-1898, 1894-10-06


deliberate design to kill or do serious
bodily harm to the deceased, which
might probably result in the death of
deceased.
10. However sudden a killing may
be. II the means used or manner OF do
ing II or other external circumstances
attending 10 show sedate and de-
llberate mind and formed design 10 kill
or TO do great bodily injury, and a
murder Is committed, II will beupon
express malice and murder OF the irst
degree
IL. Express malice. as used in this
charge and as defined In the It'll, sth.
9TH and 10th paragraphs OF this charge,
is distinct and affirmative fact. which
must be proved 10 have existed by
the facts and circumstances In evil
dence, In order to Justify conviction OF
murder In the first degree.
IL. IL you believe from the evidence
that the defendant, II. NJ Page, In Tar
rant county on or about the 18th day
OF March, 1894. did unlawfully Kill A.
b. smith by shooting him with u pis-
tol, and that at the time he acted upon
express malice, as hereinabove defined,
then 1t will be your duty to find the
DEFENDANT guilty OF murder in the first
degree and assess his punishment at
death or at confinement in the peni-
tertiary for life. and unless you 80
find from the evidence. you will not
find him guilty Of murder in the first
degree.
10. The jury are further Instructed
that implied malice is the malice which
the law tnfers from or imputes to
certain acts. that is to say, when the
fact of an unlawful killing Is estab-
llshed and there are no facts or cir
cumstances In evidence which establish
the existence of express malice and
none which reduce the killing to man
slaughter. and none which excuse or
Justify the killing, then the law i'm
plies malice.
II. II you believe from the evidence
that the defendant. r. NJ. Page, in
Tarrsnt county, on or about the 18th
day of March. 1894, did unlawfully
kill A, b Smith by shooting him with
a pistol, but should not believe beyond
reasonable doubt that the killing was
done upon express malice, as herein
above defined and should believe be-
yond reasonable doubt that the evil
dence is not sufficient under the law
as given you in this charge TO reduce
the offense TO manslaughter, nor to
excuse nor Justify the defendants act
In killing A. 3. Smith. then from such
unlawful killing the law would imply
malice, and the killing would be upon
implied malice, the offense would be
murder Of the second degree. and II you
20 find. then It Will be your duty to
find the defendant guilty OF murder
In the second degree and assess his
punishment at confinement In the penl-
tertiary for some period Of time, not
less than five years, and unless you 80
find from the evidence. you will not
find the defendant guilty OF murder OF
the second degree,
10. The next lower degree of unlaw-
full homicide 10 murder In the second
degree Is manslaughter. Manslaughter
is voluntary homicide committed under
the immediate influence OF sudden pas
sion, arising from an adequate cause,
but neither justified nor excused by
law.
l6. BY the expression, under the i'm
mediate influence OF sudden passion, is
meant that the provocation must arise
at the time OF the killing, and that
the passion Is not the result OF
former provocation and the act must
be directly caused by the passion arls-
ing out of the provocation, II any. at
the time OF the killing, II Is not
enough that the mind is merely agi-
tated by passion arising from some
other proYocation given at another
time, or given by another person than
the one killed.
II. The passion intended is any OF
the emotions Of the mind, known as
AukcIt Idkts kuuusn resentment OF Ter
ror, rendering the mind incapable OF
cool reflection, BY the expression "ade-
quate cause" which is also necessary
in order to reduce an unlawful killing
TO the grade of manslaughter
Is meant such cause as would
commonly produce degree OF
anger. rage, sudden resent ment or
terror In person OF ordinary temper
sufficient TO render the mind incapable
of cool reflection. Any condition or cir
cumstance which is capable OF creating
the anger, rage, sudden resentment or
terror in a person OF ordinary temper
and which actually does produce the
same in the person doing the killing,
is an adequate cause.
Is. But II the condition or circum-
stances giving rise to me anger, rage.
sudden resentment or terror be not
such as would commonly produce such
anger. rage, sudden resentment or ter
ror in a person of ordinary temper.
then the low would not regard II as
adequate cause, and the killing, though
attended by such anger, rage, sudden
resentment or terror, not arising from
such adequate cause would not be man
slaughter, but would be murder.
10. In order to reduce voluntary homi-
eide to the grade OF manslaughter II
is necessary not only that the ade-
Quate cause existed to produce the
condition ot mind known as anger
rage, sudden resentment or terror. such
as to render the mind incapable OF cool
reflection. but also such state OF mind
did actuslly exist al the time OF the
OF the ofrense, and that II
was produced by such adequate cause.
20. II you believe from the evidence
that the defendant, r.. NJ. Page, In
Tarrant county. on or about the 18Th
day OF March, 1894. did unlawfully kill
a. b. Smith by shooting said Smith
with pistol, but that at the time OF
the killing the said defendant was by
some adequate cause moved TO such
a degree OF anger rage, sudden re-
sentiment or terror as to render him
Incapable Of cool reflection, and that
in such a state OF mind, and not In
his own lawful self, he killed the said
Smith, then II will be your duty to
find the defendant guilty OF manslaugh-
ter and assess his punishment at con-
finement in the penitentlary for some
time not less than two years nor more
than Ave years. and unless you so find
from the evidence, you Will not nnd
him guilty OF manslaughter,
2i. When a defendant accused Of
murder seeks to Justify himself on the
ground OF threats against his own life
he is permitted to introduce evidence
of the threats made. but the same can
not be regarded as affording a justihca-
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