Red Lodge picket. [volume] (Red Lodge, Mont.) 1889-1907, 1895-01-12
INsTRt ClitsNs 10 TIE t,Rs.
Points Of Law as Laid Down ~ I:idec
Arthur,

1rihiiT.
Delivering the instructions upon the
| points Of law applicable to the case
| Judge Arthur said the defendant IS en-
| titled to take advantage Of every de-
| fenSe known to the law Before the
/ state can properly claim a conviction it
| must prove every essential element con
| stituting the crime. The law pfesunaes
| the defendant innocent until proven
guilty, Both the presumption Of in
| nOcence and the law Of reasona BILE
| doubt apply as Well to the grade Or de-
| gree Of crime as to the question Of the
| crime itself.
The court defined the term reasonable
| doubt III the usual form, and proceeded
| to enumerate the degrees Of crime, as
| charged III the information Murder III
! the first degree, murder in the second
| degree, voluntary mansiaughter, invol-
| untary manslaughter, assault and bat
| terry. and simple assault.
| IL the jury believes that Selheim will
| fully feloniously, deliberately and with
/ premelitated malice killed Smith he
| should be found guilty Of murder i'll the
| first degree. If the killing was done
| without deliberate and premeditated
| malice, the murder should be murder in
! the second degree. II it was done with
| out deliberate and pren1oditated malice,
| not pufposely and ma]iciOusly, but un-
/ lawfully and without malice express or
| implied, voluntarily upon sudden heat
| OF inNOluntarily bLt in the commission
/ Of some unlawful act, H. is guilty Of
nanSiaughter. The other degrees We're
| followed up III the same line Of reason
| iii. Stress was laid upon the Importance
| 0t proving deliberate and premeditated
| malice i'll order 10 secure con ElCtl0n q
! The highest degree OF murder. Malice,
| the. court said, is not hatched or III Will,
/ as commonly understood, bur is express
| Or Observation-Disclosures intention Ol
| where nG considerable provocation an
| pears or the circumstances show an
! abandoned and malignant heart.
/ INSANITY AND PRONuCATloN
| Il Is for the jury ID determine
| whether Tile defendant was III such !
/! state vf mind at the lime III killing
| as C. know til. necessary anG probable
consequences If his acts.
| Proyocation sufficient to reduce kill
! ing To manslaughter need not have
| been given at the time Of the act Of
| killing itself; it IS sufficient if it BE-
near enough that no cooling time has
| ELAPSED Ordinarily cooling time would
| be such period as would enable man
Of prudence to get control Of his pas
sion. In determining whether sufficient
! cooling time had elapsed since provo
| ca ton was given the jury was instruct
| ed to consider the mental capacity
/ and age Of the defendant his condition
| and state Of mind at the time the PROV
ocation was received. if any shown.
| and from that on until the act of kill
/ ing. The drunkenness Of the defendant,
| if proved should be considered in con
1 ing the temper.
THE LAW OF DRUNKENNESS.
/ If there was an observation Of the
/ mind Of the accused. from any cause,
which prevented him from forming the
/ intent to KILL then he could not be con-
| victed Of murder in either degree.
/ While it is q general rule Of law tha
drunkenness is no excuse for crime per
petrated under its influence, still II the
| defendant at the time of firing the ia
| tai shot was 50 intoxicated as to be
| incapable Of forming a willful. deliber-
| ate and premeditated design, and keep
! in his mind a design to take the life OF
| the deceased such killing would not
| be murder in either the first on second
| degree. There are four kinds Of drunk
| enness in which the law deals: Nolun-
| tary drunkenness, insanity produced by
drunkenness. and where one intending