Evening journal., 1894-09-26


killed, be but the conception and in.
! tention of moment, 1t Is as deliberate
Ia legal contemplation as if it had been
| the design of hours. Deliberate ia its
legel sense denotes purpose and design in
contradistinction to accident and mis-
chance.
8 The deliberate selection and use Of
& deadly weapon, knowing it 10 be such,
is an evidence Of express malice afore-
| thought.
Provocation to avail anything,
must be something which the slayer feels
&C the instant Of It's occurrences and he
must act under the sting of that provoca.
| tion, and resent IL a. once without delay
or time for thought OF reflection. Ii be-
| tween the provocation and the act Of
vioencscausing the death, there intervents
sufficient time for passion TO subside, or
the blood to cool. or time under the cir.
cumstaDces for the ext rclee Of ftil sc.ion
and the formation OF a deliberate pnrpose
/ la respect 70 the act which he Is about 10
do. proyocation will not avail anything.
7-Nor can IL alter or mitigate tue
| grade or degree Of tine murder that the
party was at the time in part excited or
| inhamed with Intoxicating liquor, IS
\ well ss anger and passion, or was
intoxicated, II he had sufi siant
| knowledge, thought and reflection left
TO be able to exercise and 60 show such
de,iberation and choice, aud to form such
design
s-Msnslsughter, IN contemplation or
law, can only occur in an assault and
battery when both are combatants In it
or have been, and one Of them in the
heat of blood or transport OF passion
produced by II, deals the other s fatal
/ blow or suddenly seizes without
deliberation or premeditation and
before he has had time to cool, a deadly
weapon or dangerous instrument aud
inficts q mortal wound upon him, but
not when the other is but the passive
aud upreaistng recipient and victim OF
the blows of the other party
9-No mere words. however Insulting
or provoking they may be- aud however
much they may eXasperate defendant
or excite his anger and passion, and
heat his blood, could constitute
sufficient proyecation for an assault upon
Carlo Ruva
10.-Tbe plea Of self defense cannot
enter into the dellberation Of the Jury M
this case in making up its verdict. The
prisoner has excluded such a defense by
his admission that the crime is az least
manslaughter Self defense is an entire
and complete defense, or it is no defense
at ALL
11-If the Jury believes that Faino
after leaving Crops saloon, sought out
Carlo Ruva, having in his possession q
knife which he intended to assault him
with or TO use in case Of resisl suce Of.
fered by Carlo Ruva, and did assault and
kiil him With the said knife IN pursuance
OF his said design, then tie verdict Of
the jury should be, Guilty in manner
and form as he stands indicted
Mr.. HIiles Excepts to Themi
Mr., Hflles excepted to them on the
ground that the state had gone outside
for authorities, when the law Of the
state was firmly established by the
courts of Delaware. He followed this
up with an admission that drunkenness
in itself was no excuse for tho crime.
end put In the following prayers.
The homicide y charged ia the IN.
dictment being proved, the law presumes
that it was committed with malice. IN
less the contrary appears upon the proof
produced ct the trial. but it goes fur
ther than simply malice, and therefore
the legal presumption goes no further
]
the second degree under our statute.
ala order for the jury 10 find o
verdict oil murder Ia thu first gree.
it will be necessary that they should be
satisfied beyond reasonable doubt that the
killing was the result OF sedate, deliber-
ate mind on the part Of the prisoner TO Nh
Carlo Ruva, or to do him some great
bodily ham.
3-Ii the jury shall believe that the
killing was done On provocation, but that
sufficient time had elapsed for the blood
to cool, for passion to subside and
reason to interpose 1t would be murder in
the second degree.
4-If the jury shall believe from the
evidence that Carlo Ruys made an
assault upon the prisoner in the saloon
and that there was an alteration
between the prisoner and tho deceased
there, and that the prisoner, in the heat
OF passion cccRsioned thereby and with
out a cooling time having intervened,
killed the deceased It would be man
slaughter and not murder.
5-There are no precise limits Of time
which the blood may be supposed TO cool,
passion to iubside and reason 10 interpose,
but every case depends upon its own
circumstances, and the cooling time would
be what was reasonable under the ciroum.
stances Of the case
6 6-If the jury shall believe from the
evidence, that owing to the prisoner
intoxication, the condition of the
prisoners mind and his mental capacity
were such that he was unable to form a
specific intent or a deliberate design "a
kill the deceased, they cannot find the
prisoner guilty Of murder in the first
degree.
7-If the jury shall believe from the
evidence that the homicide was commit.
ted by the accused in a state OF intoxica-
ton and by certain provocation given
him by the party killed, and when q
smaller provocation may be allowed tc
alleviate the cffanse and reduce 1t from
murder to murder in tho second degree
under the statute, owing o the we'll
known fact that q person in that
condition is more liable 10 be suddenly
heated and blinded to higher degree OF
angry passions than sober man would
4 be under same or similar prov ooation
, they should find the prisoner guilty oi
3 | murder In the second degree.
The jury must be satisfied Of all Of the