The Wheeling daily intelligencer. [volume] (Wheeling, W. Va.) 1865-1903, 1899-02-10


perienced woman's advice to women.
legged to have been done wllrully. DELHI
erateiy and premeditatedly. The execu-
t!on of a man under the sentence of q
competent court Is a wilful. deliberate
and premeditnted killing. but 1t is not Il
fclonlous. malicious and unlawful kill
ing, as all murder must De- Judge Holt,
In state VS.. Hobbs 3Ith West Virginia.
Ss7. says the words deliberate" and
"premeditated" as used In the statute,
section one. chapter IA, are synony-
nous. and "premcdltated" dispensed
with in the form OF indictment. Black
says elaboration Is prolonged medita-
ton. The same definition Is given in
"A Missouri, $40 In oSth Iowa, 524. 1t is
held that dellberat ely Is broader term
than premedltatedly. II Is easily to be
seen that deliberately Is broader term
than premedltatsd!y and when You
have said an act was deliberately done.
also, and hence the form OF Indictment
under consideration. by using the
word deliberately" has rendered the
word "prcmedl:a;ediy" unnecessary.
Murder III the second degree Davis
1899 is unknown to common law. 1t IS a
grade of murder created by statue, and
it IS intended to embrace those cases OF
homicide in which the element OF Killing
maliciously IS email or wanting alto
gethe". At common law, the man who
threw from the top Of building into
q crowded street below without warn
Ing. piece OF lumber and killed n
man. was equally guilty OF murder with
the man who deliberately and inten-
tionally killed another By torture or
poison. As stated, murder In the seq
ond degree. was designedsto embrace
those cases OF killing. that were the re-
suits OF careiessness. rather than de-
ltberate Intention TO kill. and the statute
creating that degree OF murder. In no
way altered the. common law crime o..
murder Davis ll0), and didn't divide
that crime into two distinct offences;
but to graduate the punishment OF each
case OF murder according II It's atrocity,
distinguished the crime Into two de-
grees.
Form Of indictment Good.
Now, having ascertained the purpo:t
OF the language used in the form OF an
Indictment for murder prescribed in
the statue and that 1t is Identical In
meaning with the language used In the
old common law Indictment for that
crime. and further understanding that
the statute did not alter the crime OF
murder and did not divide it into two
distinct offences. It IS easy to acquIesce
in the conclusion reached by our SUI
preme court. viz: that the form OF in
dictment prescribed in section l. chapter
IA, OF the code. is n good Indictment for
murder and one on which verdic: for
murder in the first degree may be rem
dered, and that the omission Of the
word "premeditated" from that form,
does not ritiate It, This has been the
holding OF the court in all cases where
the indictment for murder has been
questioned and discussed. State VS.,
Douglas. 41st West Virginia. 5S7: state
Va. Hobbs. 31th West Virginia, Ss5;
state vs.. Baker. 33rd West Virginia, $40:
state VS.. Flanagan, Goth West Virginia,
1l6: state VS.. Schnelle. 24th West Viz
Glnla. 1871 state VS.. Smith, 9th West
Virginia, SIS.
Proceeding. Judge Hugus took up the
technical objections made by the de-
defense to the Instructions to the jury
as given ut the instance OF the state,
and concluded that they did not justify
Il new trial.
Perhaps the most interesting matter
brought out. was that relating to the
alleged improper remarks made by Mr..
John A. Howard in his speech before
the jury on behalf OF the state On this
Judge Hugus said:
On the question OF the propricty or
Improperly OF parts of the closing ar
Sument made for the state, q very t-ou-
besome question Is presented. The sub
1ect matter OF the question Is not only
In It's nature. but the manner
of Its presentation Il likewise trouble
some. It has been the holding OF the
courts regulating the practice OF this
court, that objections should be
made at the ve"y time Of the
utterance OF the Objectionable
statement tn argument accompan-
led with a motion 10 exclude II, and d.
rect the jury 10 disregard II. r. made
then. court jury and counsel know cX-
act!y what the remark IL and what Is
ruled. and directed by the court on the
objection: and II not made at the time
or the ,ltte;rance, II has been the pre-
vailing holding OF the courts that the
matter was waived. In this case, the
motion made at the close of the a:eu
ment was 10 direct the jury TO dsre
gard all arguments which had no evil
dence to warrant them. without specify
Ing what the arguments were that we-a
believed to be unauthorized and beyond
the evidence.
The Argument Stands.
On this general motion the court did
Instruct the jury 10 disregard certain
statements. indicating them. and then
generally TO disregard "all observations