The record-union. [volume] (Sacramento, Calif.) 1891-1903, 1894-11-10

S"AAsy oo Oh dCCcSsOIy. III winch case MS
presence at the scene of the alleged killing
is not material, and the proof of an alibi
would not constitute a defense.
W mere defendant undertakes in his
oeiense 10 establish an alibi, the evidence
Whlch he offers in support thereof, taken
Win The other evidence in the. case must
account Tor him during the whole period
10 Wnlch the evidence is directed: il there
DE an interval unaccounted for, and it is
found from all evidence that the defend
ant might have committed the crime DUR
ing the interval, the evidence in regard
TO Inc allbl fails to prove what in law is
called an alibi.
In passing upon the defense of an alibi
you nave right to and you should con-
slder all the evidence in the case together;
mat tending to show guilt, II any there
De, as well as that relating TO the alleged
absence of the defendant from the place
OF the alleged killing, and if from the
Whole testimony so taken together you
are convinced to moral certainty of the
guilt of the defendant, you should so find;
but IL you entertain a reasonable doubt as
to his guilt, or as to his whereabouts,
when his presence is material YOU should
give him the benefit Of that doubt.
1t is for you, gentlemen, to determine
which OF these theories, if either, is true
10 aid you in this duty | give you the
following instructions as to the law of
the case, but caution you now that you
should not seek to infer anything from
the order in which they are given, nor
should any instruction which may be re-
peated be considered as of more impor-
lance than any other for that reason.
Counsel for the prosecution and for the
defendant have given you their interpre-
tatlon of the law. Let me say to YOU,
gentlemen, that you will take the law
from the court. and bear in mind that if
there is any discrepancy between their
statement of the law and that contained
IN these instructions, the instructions
must be followed.
The object of having a court and a
Judge OF court is to lay down princi-
pies OF law for the guidance OF jurors,
and perhaps the most important branch
OF the duties which are to be performed
by the Judge is that OF interpreting, and,
presumably, correctly Interpreting, the
law and its various provisions.
Murder is the unlawful killing of a
human being with malice aforethought.
Such malice may be express or implied.
1t is express when there Is manifested a
deliberate intention to unlawfully take
away the life of fellow creature 1t Is
implied when no considerable provoca-
lion appears or when the circumstances
attending the killing show an abandoned
and malignant heart.
All murder which is perpetrated by
means of poison. or lying in wait. tor
ture, or by any other kind of willful, de-
Hberate and premeditated killing, or
which is committed in the preparation,
or attempt 10 perpetrate, arson, rape, rob-
berry, burglary, or mayhem, is murder in
the first degree; all other kinds of murder
are of the second degree.
In order to find the defendant guilty of
murder in the first degree you must be
convinced beyond reasonable doubt
that the defendant or some person with
whom he was acting in concert unlaw-
fully and with malice aforethought killed
Samuel &. Clark, either by lying in wait
or by some other kind of willful, DELHI
crate and premeditatei killing.
In order to constitute murder in the
first degree, the intent to kill must be the
result Of deliberate generalization. 1t
must be formed upon a pre-existing re-
Election, and not upon sudden heat of
passion sufficient to preclude the idea OF
deliberation.
The word malice does not necessarily
mean that the accused must have enter
tanned toward Samuel c.. Clark feelings of
spite, hatred or will-tor, while these
sentiments in popular acceptation are
taken for malice, the legal definition OF
the word is far different. At common
law, as well as under our statute, there
may be malice in the sense of the law
hatred or ill-will, for an unlawful act
done Intentionally, and withoust just
cause or excuse is an act, in the cOntem-
plation OF law, done with malice, as that
word is understood in criminal Judi
cature. Our Penal Code defines malice,
ana declares that it means wish to veX
or annoy another person or an intent to
do a wrongful act. and that malice may
be established either by proof or pre-
sumption Of law; moreover, the same
code provides that malice is implied
when the circumstances attending the
killing show an abandoned and malig-
nant heart. Malice also comprehends
wickedness of disposition, hardness OF
heart, cruelty, reckleSSnesSs of conSe-
quences and mind regardless of social
duty, indifferent to consequences prob
ably TO enSue TO others.
While giving the definition of malice
as it Is used in criminal law, it is proper
that should further explain to you its
meaning. While malice is necessary
element in The otfense with which the
defendant is charged, you must not infer
that he should have borne such feelings
of hatred and ill-will against the de-
ceased as one would bear toward his per-
sonal enemy whom he hates and desires
to injure. Neither is it necessary that the
defendant should have known that a
train was about to leave Sacramento to
Cured, nor that Samuel G. Clark was to be
the engineer in charge. 1t is sufficient,
if you find from the evidence in the case,
that the defendant, with u reckless dis
regard of consequences, removed the rail
from the track, or aided and Allotted
others in so doing; or not being present
himself, knew of, advised and encouraged
its removal, knowing that the probable
result of such act would be the loss of hui
man life.
No one is justified in putting in peril
the personal safety of another life for the
purposes OF VeXatiOn or annoyance or for
purposes of mere amusement to himself
Ii the prisoner, from said motives, de-
liberateIY did the act here charged and
Samuel G. Clark's life was taken in con-
sequence thereof, his otfense would be
murder.
In every crime or public offense there
must exist union or joint operation of
act and intent or criminal negligence
The intent or intention is manifested by
the circumstances connected with the
offense and the sound mind and discre-
sound mind who are neither Idiots nor
luuatics nor affected with insanity. But
malicious and guilty intent is, in law,
conclusively presumed from the de-
uberate commission of an unlawful act
for the purpose of injuring another. And
the jury are, uDuer tneIr oatn5, DOund 10
act upon presumption declared by the
law.
The law also presumes that an unlaw-
full act was done with an unlawful intent
and that person intends the ordinary
consequences of his voluntary act.
The evidence of one credible witness,
swearing directly to any material fact in
this case, if uncontradicted by any other
evidence or by facts and circumstances
proven, and you believe it, is sufficient
proof OF that fact for the purpose of this
trial.
Evidence sufficient to establish guilt