The Austin weekly statesman. (Austin, Tex.) 1883-1898, 1896-12-03
as you may determine and state in your

OF the 0ffenSe OF murder Ill the second
degree, the distinguishing feature, how
ever, so far as the element of malice is
concerned, is, that in murder in the first
degree malice must be proved to the sat
isfaction of the jury beyond reasona-
BILE doubt, as an existing fact, while in
murder in the second degree malice will
be implied from the fact of an unlawful
killing where the evidence which has
been adduced does not show express
malice beyond reasonable doubt on the
one hand or tend to show any justihca-
ton, excuse or mitigation for the act on
the other.
Thirteenth-Implied malice is that
which the law infers from or imputes to
certain acts, however suddenly done; thus
when the fact of an unlawful killing is
established and the facts do not estab-
lish express malice beyond a reasonable
doubt nor tend to mitigate, excuse or
justify the act, then the law implies
malice and the murder is in the second
| degree; and the law does not further de-
| fine murder in the second dgree, than
if the killing is shown to be unlawful
and there is nothing in evidence on the
one hand showing express malice, and
on the other hand there is nothing in
evidence that will reduce the killing be-
| low the grade of murder, then the law
| implies malice and the homicide is muir
der IN the second degree.
| Fourteenth-Now, if you believe from
the evidence, beyond reasonable doubt,
that the defendant, Eugene Burt, in the
on or about the 9th day of July, A. ID.
1896, did unlawfully kill Anna M. Burt
/ by either or by all the means enumerated
in the Indictment in the case as hereto
| fore set out in paragraph eleven of this
charge, but should not believe from the
evidence beyond reasonable doubt that
the killing was done with express malice
| las that has been hereinbefore defned)
| then you will find the defendant guilty
! of murder in the second degree and assess
| his punishment at confinement In the
state penitentary for any term not less
than five years.
Fifteenth-Where you are instructed
! in this charge to find the defendant guilty
upon finding given state OF facts, you
will consider such charge in connection
with that portion of the charge herein.
after given you upon the questions OF
defendants insanity at the time OF the
alleged commission of the ofense charg-
cd against him as well as in connection
with the whole of this charge.
Sixteenth-Should you find the defen-
dant guilty of murder in the first degree
or guilty Of murder in the second degree
you will state of which degree of murder
for whatever offense you may, find him
guilty. you will affix the punishment for
that crime as heretofore directed.
If from the evidence, you are salts
fed beyond reasonable doubt that the
defendant is guilty of murder, but have
a reasonable doubt whether It was com
mitted upon express or implied mahce,
then you must give the defendant the
benefit of such doubt and not find him
guilty of a higher grade than murder IN
the second degree.
Seyenteenth-1f you do not lind that
the said Anna NJ. Burt is dead and that
the defendant unlawfully killed her, then
YOU will return verdict of mot guilty.
Eighteenth-In this case the state re,
lies for q conviction upon circumstantlal
evidence alone, and in order to Warrant
a conviction upon such evidence each fac'
necessary to establish the guilt of the ac'
cused must be proved by competent evi l
dence, beyond reasonable doubt, And
the facts and circumstances proved
should not only be consistent with the
guilt of the accused, but inconsistent
with any other reasonable hypothesis OF
conclusion than that of his guilt, and
producing in your minds reasonable
and moral certainty that the accused
and none other, committed the oifense.,
Under his plea of mot guilty" IN TINS
case the defendant has put in evidence
facts and circumstances which raise inc
issue of his insanity at the time the Of
Tense for which he is on trial is alleged
to have been committed.
jjpon this issue you are Instructed th'tl
under the law no act done III state OF
insanity can be punished as an offense:
Nineteenth-Every person charged WITT
crime is presumed to be sane-that 49, o.
sound memory and discretion, until the
contrary is shown by proof. Ii undel
the law as herein given you In charge
and the testimony of the witnesses, thi
guilt of the defendant has been estaDll
cd beyond a reasonable doubt it devolye'
on the defendant to establish his insal
ity Mt the time of committing the act, II
order to excuse himself from legal le
sponsbility; that is to say. the burden OF
proof to establish his plea of insanity de
wolves upon the defendant. If the state
has. rs before explained. proved the fact'
which constitute the offensc charged II
tbe bill of Indictment. your next inquiry
will be. has the defendant established py
proof his plea of insanity, or has 1t beer
established by proof from any source; u
| II has. the law excuses him from crimlna
liability. and YOU should acquit him. The
question of the insanity of the defendant
has exclusive reference to the act Wlti
which he is charged and the time OF the
commission of the same. If ne was
sane at the time of the commission OF the
crime he is amenable to the law. AS e
his mental condition at the time. VIII
reference to the crime charged. 1t IL pc
culiarly a question of fact to be decided
nv YOU from all the evidence in the case
before the act at the time. and after.
Twentieth-A safe and reasonable test
in all cases, would be- that
whenever it should appear from
all the evidence. that at the time
of doing the act, the defendant was moi
of sound mind. but was affected with IN
sanity, and such affection was the EN-
cient cause of the act. and that he would
not have committed the act but for tha'
affection he ought to be acquitted. FoI
i'm such case the reason would be III the
time dethroned, and the power to exer,
else Judgment would be wanting. Bui
this unsoundness of mind or affection OF
insanity must be of such a degree as to
} create an uncomfortable impulse to DC
the act charged, by overriding the rea'
son and Judgment and obliterating the
sense of right and wrong, depriving the
accused of the power of choosing between
right and wrong as to the particular act
done.
Il Twenty-frst-W Whether the insanity be
general or partial, whether continuous OF
periodical. the degree of it must have been
sufficiently great to have controlled the
will of the accused and to have taken
from him the freedom of moral action,
at the time of the commission of the act
Where reason ceases to have dominion