Richmond dispatch. [volume] (Richmond, Va.) 1884-1903, 1898-11-20
PAGES 13 TO 20.


gree, IN order TO elevate the offence 10
huluer IN the first degree the burden of
piSoI Is upon the Commonwealth. and to
$500 we oHence To manslaughter the
purntn OF PROOF is upon the prisoner.
Ihat every wilful. deliberate and pre
nnouisa'Su killing, without provocation or
excuse Is murder in the first degree and
thdt on charge OF murder malice ia
ptesuInsd from the fact OF the killing,
when the killing Is proved. and IS mac,
NoInpamed with circumstances OF pallia-
uoh, the burden of disproving malice IL
on the prisoner
Ihat TO constitute wilful. deliberate.
e ,a., p.eneditated killing. 1t is not neces-
10y Nhat the intention to Kill should
VMst any particular length OF time prior
20 ne actual killing; II Is only necessary
that such intention should have come into
NNistcnce from the first time at the time
SUN ci kilnng. or at any time previously.
., ihat a mortal wound, given with a
uSduiy weapon, In the previous possession
VI me slayer without any or upon very
S"Snt proVocaaon is prima facie wilful.
vNhperate' ana prcmeditated killing. and
throWs upon the accused the necessity OF
proving eXtenuating circumstances.
WHAT CONSTITUTES PROVOCATION.
a. That In order to sustain provocatlon.
as a defence TO murder in the first de-
Sree 1t must be shown that at the time
or the shooting IL was such as to have
otprlNed the prisoner Of self-control.
~ hN NNAiN luSkIutAS the July lldt
proNocauon, as used in the instructions
numbered 4, mean such insulting words
acts or gestures as are calculated to
provoke the anger Of the accused and
CcprlVe him Of the power Of self-control:
but If the jury believe from the evidence
mat the accused acted I'm sef-defence
IN the shooting, as defined IN these in
structions. then they are further in
Structed that the accused need not have
been beyond self-control while so acting
In Solf-dcfonce
.. That no words Of reproach or accu-
s&uon, howsoever grievous they may be,
VIII AFFORD sufficient provocation TO free
the party killing from the guilt Of muir
der; and If they believe from the evil
dence that j. Penrose Carter killed
Charles +. Moore with n deadly weapon
on account of words used by the said
Moore TO the said Carter, then the said
Garter rs guilty of murder. nOtwithstand-
ing any provocations contained In said
words.
s That If they believe from the evil
dence that the accused armed himself
with loaded pistol. and that after so
arming himself he sought the said Moore,
and put himself in the way Of said Moore.
so as to have the opportunity Of killing
the said Moore. in case he should attack
him, and that the said Moore afterwards
while unarmed, did make an assault upon
the accused. and the accused killed him
in pursuance of a previous former de-
sign, then such killing Is murder in the
first degree.
Z. That If the jury believe that the ac-
cused relies on necessity, whether real
or apparent, 10 Justify the killing or the
said Moore. such necessity must not arise
out Of the prisoners own misconduct,
the law being that "A man shall not in any
case justify the killing of another upon
the ground OF necessity, unless ne be
without fault in bringing that necessity
upon himself.
WAS THE KILLING NECESSARY.
S. That though the jury believe from
the evidence that the said Moore used
violent and threatening language to-
wards the accused, and that though the
said Moore moved his hand as If TO draw
his pistol 10 kill the accused. and though
the said Moore threatened TO spring
out Of his buggy and Kill the accused,
yet the accused had no right to Kill the
said Moore unless those acts induced a
reasonable belief on the mind Of the ac-
cuSed that such killing was necessary TO
save his life and TO protect himself
against grieYOus bodily harm.
6ls The Court instructs the jury that If
they believe from the evidence that the
deceased used violent language toward
the accused and threatened to Kill him,
or do him serious bodily harm, and that
the deceased also moved his right hand
back TO his side or hip, as if TO draw a
pistol or other weapon TO Kill the ac-
cused, and at the same time made mo-
ton as if to spring out OF the buggy and
Kill the accused or do him serious bodily
harm. then, if the jury believe that these
acts induced a reasonable belief in the
mind of the accused that he was in i'm
mediate danger of life or serious bodily
harm, then the court inStructs the jury
that the accused was justified in killing
the deceased, and you must acquit him.
9. That i'm every case OF killing upon
provocation, how great sOever this provo
cation may have been, if the killing be
committed deliberately and upon revenge,
ana a sufficient time has elapsed after
the prOVOcatiOn Tor passion TO cool and
reason to interfere then such killing is
murder for all deliberate killing upon
the principle of revenge is murder. No
man under the protection Of the law is 10
be the avenger of his own wrongs.
MUST REGARD HIS TESTIMONY.
10. The jury are instructed that they
have no right to disregard the testimony
of a witness upon the sole ground that
he is the defendant in the case on trial
and stands before them charged with the
commission Of a crime. The law pre-
sumes him TO be innocent until he is
proved guilty beyond a reasonable doubt,
and allows him to testify in his own
behalf. and the jury should fairly and
impartially consider his testimony, and
test il in the same way as that of any
other witness. and determine from mis-
manner and appearance in testifying, and
his capacity TO discern the truth, and his
interest in telling or cOncealng it, how
far he should be believed.
H. The Court lnstructs the jury that
the law prcsLmes the defendant TO be
innocent until he is clearly and cOnclu-
sively proved guilty, beyond all reason
able doubt; and. If there is upon the
minds of the jury any reasonable doubt
Of the defendants guilt, the law makes
il their duty TO dcqult him, aud that
even II there were suspicion or probabili-
" # his guilt, however strong, they
would not be sufficient TO convict. nor
would il be sufficient. II the greater
weight or prepOuderance of evidence sup
ported the charge In the indictment, nor
that. upon the doctrine OF chances, IL
were more probable that the defendant IS
guilty. but TO warrant his conviction. ms
guilt must be proved so clearly and con-
cusively that there is no reasonable the
ory upon which he can be innocent. A
reasonable doubt, as used IN these IN
structions. means that state OF nina
which, after a full comparison ana con-
sideration of all the evidence, leaves the
minds OF the jury in that condition that
they cannot say that they feel an abiding
faith, amounting TO moral certainty
from the evidence in the case, that the
defendant is guilty OF the charSe' as laiu
in the indictment.
r. The Court instructs the jury thai
I'm this case the law raises no preSump-
ton against the prisoner, but every pre-
sumption Of the law is IN favor OF MS IN
nocencc. he rests secure in that pTesump-
lion until proof is adduccd which estaD-
fishes his guilt beyond reasonable
doubt: and. in order to convict MN OF
the crime alleged in the indictment, every
material fact necessary 10 constitute such
crime must be proved beyond reason
able doubt; and if the jury entertain any
reasonable doubt upon any single Iac'
ar element necessary to constitute the
crime. il is your duty to give the prisoner
The benefit Of such doubt. and acquit him
WHAT THE LAW Is.
g. The jury are instructed as matte
= =. - IL n nDranu lDAIs ann M.