Santa Fe daily New Mexican. [volume] (Santa Fe, N.M.) 1885-1897, 1896-09-02

The indictment alleges that the accuse
uulawfully, feloniously, wilfully, purpose
y, and with express malice aforethought,
did shoot and kill Francisco Chavez, and
it is urged that such charge neither ex-
pressly nor by implication is an accusa-
tion of murder. The killing is admitted,
but that the allegation of the scrime
charged is of greater degree than assault
is gravely denied.
The ;ndictment charges that Francisco
Chavez was killed as above recited, but
the accused claim this is not an accusa-
tion that he was murdered; that he died
instantly is the statement of the indict-
ment, and yet the pretension is that the
ccused were arraigned, not for the crime
of killing him, but for making an assault
upon him. We do not appreciate any
such representation, as the indictment, in
our conception, embodles in its terms all
the elements that constitute murder, and
is 80 distinct and comprehensive that it
excludes lesser crime than the most fla
grant, that of murder in the first degree.
| Murder Defined.
Murder is defined by our statute as the
unlawful killing of a human being With
malice aforethought, express or imrfsa,
and express malice is described as "the
deliberate intention unlawfully to take
away the life of fellow-creature, which
is manifested by external circumstances
capable of proof" Murder in the first
degree is classified by statpte, and in the
petrated from deliberate and premedi-
tated design unlawfully and maliciousy
to effect the death of any human being.
The offense for which the accused were
tried is, that they unlawfully, feloniously,
wilfully, purposely, and with express
malice aforethought did kill and murder
Francisco Chavez, and yet it is insisted
that there is the omission of the elements
of deliberation and premeditation in this
accusation essential TO constitute charge
of murder in the first degree. We might
attribute to willfulness that malicious in
tent-to purpose that positive design,
that would involve contemplation with
out mature consideration, but we will not
resort to construction when the statute is
SO emphatic as to render it superfuous.
Express malice is defined to be "that
deliberate intention unlawfully to take
away the life of a fellow creature, which
is manifested by external circumstances
capable of proof" Let Us then substi-
tute for the adverbs employed in the in
dlctment their equivalents according to
the photographers of legal phraseology,
and for the words "express malice afore-
thought" the definition as given by our
statute. "Willfully," in it's most moderate
signifcation is intentionally-purposely
is designedly, and express malice is by
the statute the deliberate intention to
take away the life of fellow creature,
and, if for these adverbs, there wereinser
ed in the indictment their synonyms and
the statutory definition for the phrase
"express malice," the charge would then
run, that the accused unlawfully, felonious-
| ly, Intentionally and designedly, shot
Francisco Chavez with deliberate in
tention to take away his life.
| If such legitimate paraphrasing does
not demonstrate that the charge made in
the indictment is that of murder in the
first degree, it would be difficult to use
phraseology to constitute such an accu-
sation. A deliberate intention unlawfully,
feloniously, willfully, purposely to take
| d a " life iiss1udcs all the clcra ants nf the
crime of murder in the first degree, and
by It's terms excludes all conception of
lesser crime as their Specification. There
can not be the absence of design to effect
death, nor the heat of passion in the per-
petration of the crime where deliberate
intention exists, and we can therefore but
| conclude that the indictment exclusively
charges murder in the first degree, and no
lower crime.
| r. tbok ho ot nf
the Jury that the accused are "guilty as
charged in the indictments" is respon-
sive to the indictment, and is finding
that they, in killing Francisco Chavsz,
committed murder in the first degree.
In People vs. Enoch, 13 Wend., l59, it
was charged that the defendant felonious-
| ly and of malice aforethought killed his
wife, the words with premeditated design
being left out, and general verdict of
guilty was returned, and judgment upon
the same for the execution of the accused
vas sustained.
Defense of the Accused.
We will now address ourselves to the
defense presented by the accused. They
deny that they we're guilty of the killing
of Francisco Chavez, and undertook to
prove that three were at the house of
Seferino Alarid and the fourth at his
home at the time of the shooting, and the
court instructed the jury, that it was in
cumbent upon them to establish this
claim by a preponderance of the eyinenee,
but not beyond reasonable doubt, and
added .if, therefore, after consideration
of all the evidence in the case, as we'll
IxL. &C., 10 ho nj nff ~ q
defendants, as that offered by the terri
tory, you have reasonable doubt as to
whether the defendants were at the place
where the crime was committed, or were
in some other locality away from the
place of the homicide, you should give
the defendants the benefit of that doubt
and find them not guilty"
This instruction is objected to as err
roneous, in that it announces that the
obligation to establish the alibi is upon
the defendants. Many respectable au-
thorities have regarded alibi as an affirm
ative defense. but we do not feel called
upon to pass upon this view in this case,
as the instruction given by the court dis
tinctly announced to the jury, thatif they
entertained any reasonable doubt after
considering all the evidence of the de-
PENDANTS in relation to the alibi offered
by them, whether they were at the place
Of the homicide, they should give the
benefit of that doubt to the defendants
and find them not guilty. This imposes
upon the prosecution the obligation to
demonstrate beyond reasonable doubt
that the accused were at the place where
Francisco Chavez was killed, and gives
them the benefit of their testimony to
create in the minds of the jury reason
able doubt as to their presence then and
there. The accused are relieved by this
instruction from any responsibility to
establish by preponderance of evidence
that they were at the house of Seferino
Alarid or elsewhere at the time of the
perpetration of the crime, as the direc.