The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1897-04-03


tain any reasonable doubt as to
whether the shooting was wilful, delib-
crate and nremeditated: and as &c
whether the shooting was with deliber-
ate intent on the part of the defendant
that the shots should take the life OF
the witness Lille OFT; but if you be-
lieve that the shooting was done with
malice aforethought, then you may
find the defendant guilty of an assault
with intent to commit murder.
AS TO MALICE.
1.-The crime of an assault with intent
to commit murder is committed when
a person of sound mind ana discretion
unlawfully attempts TO murder any
person with malice aforethought, either
cypress or implied. Express malice ex-
ISIS when there is manifested a deliber-
ate intention unlawfully to take away
the lie of a fellow creature. Implied
malice exists where no considerable
provocation appears; or when the cir
cumstances attending the killing or at
tempt to kill show an abandoned or
malignant heart. While the law re-
quires, in order to constitute the Of
tense of an assault with intent to COM
NIT murder. that the attempt shall be
with malice aforethought, and may be
wilful, deliberate and premeditated,
still it does not require that the Wl!ful
intent, generalization or deliberation
shall exist for any length of time be-
fore the crime is committed. 1t is suf-
ficientsif there was q, design, deterrai-
nation to kill, distinctly formed in the
mind at any moment before or at the
time of the shooting.
L have defined to you the two de-
erees of murder, in the first and second
degree and desire now to define to you
manslaughter: Manslaughter is the
unlawful Iii. ing of q human ing VIII
out malice. = is OF TWO kinds-first,
voluntary, upon a sudden quarrel or
heat oe passion; second, Involuntary
rnanslaughter You viii notice that
voluntary manslaughter differs from
murder in the absence of malice, and in
the existence Of heat of passion, either
growing out of a sudden quarrel or out
Of some other circumstance.
MANSLAUGHTER.
In cases of voluntary manslaughter
Their emust be a serious and highly
provoking injury or other provocatlon
inflicted upon the person killing, suifl-
cient to excite an irresistible passion
in a reasonable person; or an attempt
by the person killed to commit seri-
Gus personal injury on the person kill
ing. The killing must be the result OF
the sudden violent impulse of passion
supposed to be irresistible; for, If there
should have appeared TO have been an
interval between the assault and pro-
vocation given, and the killing, tuffl-
cient for the voice Of reason anG hu-
mainly to be heard, the killing shall be
attributed to deliberate revenge, and
punished as murder
You will notice, therefore, that to re-
duce homicide to manslaughter, on the
ground solely that il was committed in
the heat of passion, the provocation
must be such as was calculated to
give rise to irresistible passion in the
mind of a reasonable person; and that
no slight or trivial provocation not cal
culated to sengender uncomfortable pas
sion in any ordinary mind, would suf-
flee.
Of course it is not necessary that the
defendant should become insane or lose
his possession of what is occurring or
his intention to kill
HEAT OF PASSION.
The phrase neat of passion" is not
used in a technical sense, but to de-
note a condition OF mind contradistln-
guished from that actual state of the
blood implied in the use OF the term
'deliberation, but such heat of pas
SION must be founded upon provoca-
ton which was calculated to give rise
to irresistible passion in the mind of
reasonable person.
No words Of reproach, however griev-
Gus, or abuse. or irritating and pro-
voking gestures, are sufficient provo
cation to reduce the offense of inten-
tional homicide with a deadly weapon
from murder to manslaughter.
The court instructs the jury that
malice within the meaning of the law
includes not only anger, hatred and
revenge, but every other unlawful and
unjustifiable motive. Malice is not con-
fined to i'll will towards an individual.
but it is intended to denote an action
flowing from any wicked and corrupt
motive. A thing done with wicked
mind, and attended with such circum-
stances as plainly indicate a heart re-
CARELESS of social duty and fully bent
on mischief, indicates malice within
the meaning of the law. Hence malice
is implied from any deliberate and cool
act against another, however sudden.
which shows an abandoned and ma
lignant heart.
The court instructs the jury that if,
without such provocation as is appar-
emily sufficient to excite irresistible
passion in the mind of a reasonable
person. a person strikes another with a
although he had no previous malice or
i'll will against the party struck, yet
he is presumed to have had some NAL
ice at the moment of striking; and if
death resulted from such blow it would
be murder.
The jury are instructed that the de-
liberate intention called malice afore-
thought need be only such delibeI ~tion
and thought as enables a person to ap-
70
the act was committed the nature of
the act and its probable results.
To constitute malice aforethought no
particular time need intervene between
the formation of the intention and the
act. II is enough if the intention to
commit the act, with a full apprecia-
ton of the result likely to follow. was
present at the time the act was COM
and if the act was not the re-
suit of some sudden heat of passion,
provoked by some acts calculated to
override judgment. and before sufficient
time elapsed for reason to resume its
sway. (S5 Mich. 49,
AS TO INTENT.
Upon the question of intent the court
instructs the jury that the law pre-
sumes man to intend the reasonable
and natural consequences of any act
done; and this presump-
ton of law will always prevail, unless
from consideration of all the evil
dence bearing upon the point the Jury
entertain reasonable doubt whether
such intention did exist
PRESENTATIONS OF THE LAW.
The law presumes that every sane per-
son contemplateS and intends the natural
and ordinary and usual consequences of
MS own voluntary act. unless the con-