The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1898-12-22
ABSURD TALE.
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with which he is charged unless his
guilt is proved to your satisfaction be-
yOnd a reasonable doubt. In the use of
the term reasonable doubt - do not
mean possible doubt, a mere speculation
or captiOus bubble suggested for the
purpose of evading the performance of
an honest duty, but I mean such a fair
and reasonable uncertainty concerning
the truth or falsity Of any matter or
thing which would naturally and hon
eStly be suggested to the mind of any
candid and conscientious man, after
careful and impartial consideration of
such matter If submitted to him for
examination and consideration. Or ex-
pressed in other language, a reasonable
doubt is that state of the case which,
after the entire comparison and con-
SideratiOn of all the evidence, leaves the
minds of the jurors in that condition
that they cannot say that they feel an
abiding conviction to a moral certainty
of the truth of the charge; that is, to
a certainty that cOnvinces and directs
the understanding and satisfies the rea-
son and judgment of those who are
bound to act cOnscientiOusly upon it.
And unless defendant has been proven
guilty beyond a reasonable doubt, as
herein explained, then you should acquit
him.
Murder in the first degree is where a
person OF sound mind and discretion
unlawfully and wilfully, with delibera-
ton and generalization, kills any rea-
sOnable creature in being in the peace
of the state with malice prepense or
afOrethOught, express or implied.
Murder in the second degree is where
a person of sound memory and discre-
ton unlaWfully, purpOsely and malic-
iously, kills any reasonable creature in
being, in the peace of the state with
malice prepenSe or afOrethOught express
or implied. but without elaboration or
generalization.
Under the Information in this case. if
the evidence warrants it, the defendant
may be convicted of murder in the first
or second degree. If you are satisfied
that the defendant is guilty of one of
these degrees of murder but have doubt
as to which degree he is guilty of, you
should give the defendant the benefit of
the doubt and voncist him OF the lower
degree only.
You viii observe from these instruc-
lions that the only substantial differ
ence between murder in the first degree
and murder in the second degree con-
sistS in the fact that to constitute muir
der in the first degree there must be
deliberGtiOn and generalization, while
those elements are not necessary to
constitute murder in the second degree.
Malice, in its legal sense, denotes the
intentional doing of a wrongful act
without just cause or excuse; malice
afOrethOught may be express or implied.
Express malice is where one person
kills another with sedate, deliberate
mind and formed design, being evidenc-
ed by external circumstances discover
ing the inward intention or premedita-
ton; such, for instance, as lying in wait,
antecedent threats, former grudgeS and
concerted schemes to do the party some
bodily harm Implied malice is where
the killing is effected by any deliberate
and premeditated cruelty, and evincing
a design to take human life, and done
without present prOVocatiOn. And al
though there is this distinction between
express and implied malice, they mean
and express the same condition of mind.
In order therefore, to constitute muir
der in the first degree, applicable to the
charge in this case, a design must be
formed to kill Wilfully, that is, on Dur-
pose, with the intent that the act by
which the life of e human being is
taken should have that effect: dalibel-
ately, that Is with q COoi purpose
maliciously, that is, with malice afore-
thought as / have described; and with
premeditation, that is, design must be
formed before the committing of the act
by which death is produced. And in the
present case the killing must have been
done by John Henry Collins, in the
manner charged in the information, and
at the county of Shawnee in the state
of Kansas. If any of the foregoing es-
sentials, namely, malice, intent wilfuI-
ness, generalization, elaboration, de-
sign, mode of killing, or place of kill
ing is not proved to your satisfaction
beyond a reasonable doubt, then you
should not find the defendant guilty.
It is perhaps proper to define some
other words used in the information and
these instructions, such, for instance, as
the word wilfully, which means inten-
tOnally, DurDOSely and not accident
ally; the word deliberate means as used
in these instructions, weighed in the
mind, to consider and examine the risks
for or against the measure, in order to
form an opinion thereon; the word pre-
mediate means to think or revOlVe in
the mind before hand and to contrive
and design previously. To constitute
reconciliation and elaboration, how
ever, 1t is not necessary that they
should Drecede the killing any great
length of time, but it is sufficient if
they actually existed before the killing
however short the time of their exist
ence may have been.
In order to warrant a conviction on
circumstantiaI evidence each fact nee
essary to the conclusion sought to be
eSta bliShed must be proven by coupe-
tent evidence beyond reasonable doubt.
All the facts must be consistent with
each other and with the main fact to
be proven, and the circumstances ia
ken together must be of a conclusive
nature, leading, or the whole to a sat
isfactOry conclusion, and produce on the
whole reasonable moral certainty that
the accused committed the offense
charged.
consistent with the superstition of de-
PENDANTS guilt are not sufficient to war
rant a verdict of guilty, but in order to
convict on circumstantial evidence
alone it is necessary not only that the
circumstances all concur to show that
the defendant committed the crime
charged, but that they be inconsistent
with any other rational conclusion.
Each necessary fact or link in the
chain of circumstantia1 evidence from
which the defendants guilt is sought to
be deduced, must be established to the
same degree of certainty as the main
fact which these independent circum-
stances taken together tend to estab-
lish.
To warrant a conviction upon cir
cumstantial evidence, it is not sufficient
that the facts and circumstances create
a probability that the defendant COM
mitted the offenSe charged, but they
must be such as are incompatible upon