The San Francisco call., 1895-11-02

ti,nEs state6. Ts he Killing willful Chat is to
say Intentionally deliberate and premedltated!
II it is, the case falls WIthln IHe H1s'' ANU -
not, within the second degree
What constitutes murder
IN The frSt degree.
/ deem it proper at this point TO explain to
YOU somewhat fully what constitutes muroer
in the first degree. II person shoulu WIAl-
fully, feloniously and manclouSI! a1@h!lHlsle1 minis e.
to another deadly poison, WIN tile htent "
kill and murder sucn person, ana oeSIh enSues
therefrom. that viii constitute muruer IN th9
first degree So if one person cruelty and
naIiciouSlv tnrtureS another human Delllg 10
death intending thereby 10 cause ms ueaIn,
then that would constitute murder IN me Ihe nISt @
degree. And the same result Would 1o1l9" n II -
nersOu lies in wait and WIliuIiN, ana WIN
malice aforethought, without cause or excuse
or legal justihcation deli3erateIy klils
human being, that would also oe ihu[uTI ~
the first degree. In each OF these class, OF
cases the means used is held to be conclusive
evidence OF premedItatlon
Again. gentlemen, there is another class OF
,,,-ITder in the first degree which you have un-
doubtedly observed from the language Just
read 10 you, and they are where Inc klllng is
committed in the Preparation or attempt 10
perpeIrate arson, rape, robbery, burglary or
mayhem, then the killing is murder IN the hrst
degree.
Illustrations Of
iluiatcRti0Rdj murder.
An illustration or TWO where death results in
the commission of these felonies will be appro-
nriate Ii \ wilfully and malici ously sets fire
10 the dwelling-houSe of in which at the time
there is q human being, and II as result OF
such setting fire to the house the life OF such
human being is destroyed, in such case a
would be guilty Of murder in the first degree,
although he had no knowledge that such per
son was in the house at the time ana had no
Intention to cause his death
Again, if man perpetrates or attempts to
perpetrate rape by having an act OF sexual IN
tercourse with female not MS Wlie, against
her viii and resistance, by force and violence,
trate such rape, and rs result thereof, he
should cause the death OF the said female, then
that would constitute murder in the hrst de-
gree, although he had no intention TO Kill her.
So, il a man felOniousIy assaults anoUher Tor
the purpose and with the intent 10 rob nlm
and take from his person property belonging
TO him by means OF force or fear and against
his viii, and i'll the preparation or attempt
10 perpetrate said robbery he kills the party
he is endeavOring 10 rob, although he may
not have intended to kill him, he would be
guilty OF murder in the first degree. And the
same result would follow, II person XIII an
other human being in perpetratng or at
tempt to perpetrate burglary or mayhem In
each one of the last enumerated cases the Kill
ing of a human being in the preparation or
attempt to perpetrate either OF these named
felonies is in and OF itself murder OF the first
degree. In this latter class OF hOmlcides the
occasion is made conclusive evidence OF pre-
meditation.
The Jury to determine
the GegTCe Qf crime.
classes OF cases which have just enumerated
and explained to you, the test question, els the
killing Willful, deliberate and premeditatedV
Is answered by the statute Itself, and the jury
has no option but to find the prisoner guilty in
the first degree. Hence, so far as these two
classes are concerned, all difficulty as 10 the
question of degrees is removed by the statute
But there is another ana much larger class OF
cases included in the definition OF murder i'll
the first degree which are of equal cruelty and
aggravatiOn with those enumerated, and
~
forms which murder assumes, 1t is impossI bic
to describe in the statute In this class the
Legislature leaves the jury to determine, from
all evidence before them, the degree OF the
crime, but prescribes for the government OF
their deliberations the same test which has
been used by iCself in determining the degree
of the other two classes, TO wit: the deliberate
and precOnCeiVed intent to kill. Thus the
three classes OF cases which constitute murder
OF the first degree are made TO stand upon the
same principle.
Intent must be
herein considered.
It is only in the latter class OF cases that any
difficulty is experienced in drawing the dis
tincton between murder OF the first and MUIR
der OF the second degree and this difficulty is
more apparent than real. The unlawful kill
ing must be accompanied with deliberate
and clear intent to take llte in order to con-
slltute murder OF the first degree. The intent
to kill must be the result of deliberate pre-
meditation; il must be formed upon q pre-
existing reflection, and not upon q sudden
heat OF passion SQflcleDJ 10 preclude Ine ldea
OF deliberation. There need be no appreciable
space OF time between the intention to Kill
and the act of killing; they may be as instan-
taneOuS as successive thoughts OF the mind. 1t
is only ecessary that the act OF killing be pre-
ceded by a concurrence OF viii, deliberatiOn
and premeditation on the part of the slayer
and If such is the case the killing is murder OF
the first degree, 10 matter how rapidly these
acts OF the mind may succeed each other, or
how quickly they may be followed by the act
of killing. Our Supreme Court says that man
10 inc I'm 1lN- 4 Otal nd
tentionally from moments reflection, as well
as after pondering over the subject for month
or year.
All other murders which were murders at
common law are, under our Penal Code, MUIR
der in the second degree. The distinction be-
tween murder in the first and second degrees
is, that in murder OF the first degree, unless it
was committed in perpetrating or attempting
TO perpetrate arson, rape, robbery, burglary or
mayhem, or by means OF poison, or lying in
wait, or torture, the killing must be Willful
deliberate and premeditated; while in murder
in the second degree the killing, although
done with malice aforethOught, is not deliber-
ate or premeditated. In both cases, however,
the killing must be willful and felonious and
accompanied with malice aforethought.
The chief difference which distinguishes
murder OF the first degree from murder of the
second degree exists in the presence or absence
of the Tillful, deliberate and premeditated in
tent TO kill except in the class of cases just last
mentioned and explained to you.
The penalty of murder
III TIC JtISL uCgIC6.
Our Penal Code provides that every person
guilty of murder in the first degree shall suffer
death or confinement in the State prison for
life, at the discretion of the jury trying the
same Therefore, if you should find the de-
fendant guilty of murder in the first degree
there are two forms of verdict, either of which
1t is proper for you to render. 1t is your duty
TO determine whether he shall suffer death or
be punished by confinement in the State
prison for life. Ii you shall determine that he
shall suffer death you will render verdict as
follows 1--WE, the jury, find the defendant,
William Henry Theodore Durrant, guilty OF
murder in the first degree"
By the return of such g verdict it viii be-
come the duty of the court to pronounce the
death penalty. Should you determine and con-
clude that he shall not suffer death, but that
he be punished by Imprisonment in the State
prison for life, you viii return verdict as fol-
lows: 1--WE, the jury, find the defendant, Will
liam Henry Theodore Durrant, guilty of murder
in the first degree. and find and assess his
punishment therefor in the State prison for
life" Should you on the evidence in this case
find the defendant guilty of murder in the sec
ond degree, this viii be your form of verdict:
1--WE, the jury, find the defendant, William
Henry Theodore Durrant, guilty of murder in
the second degree If upon the whole evil
dence you have a reasonable doubt of the guilt
OF the defendant OF either of these degrees or
grade OF the otiense charged in the information
as herein read, you must give him the bene fit
of that doubt and acquit him. and in such
event your verdict will be: owe. the iurV find