The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1902-06-15
JUDGE M0RSE'S CHARGE
CONSIDERED AFFAIR ONE

CONSIDERED A FAIR ONE
Judge Morse then read hts charge.
It was admirably fair throughout, and
no exceptions were taken by the sttor-
neys. Mortensen listened intently to
the Instructions. as did every person in
the room. the solemnity Of the occasion
forcing itself upon the spectators. The
charge was as follows:
Gentlemen of the jury. The de-
PENDANT, Peter Mortensen, is accused
by the information of the district at
torney of this district with the crime
of murder in the first degree. The in
formation charges, in substance, that
Peter MOrtensen, on the 18th day Of
December, A. D. 1901, at Salt Lake
county, state Of Utah. unlawfully.
willfully, felOIiously, deliberately. pre-
meditatedly Of his malice afOrethOUght,
and with the specific intent to take the
life of James r. Hay, did kill and muir
der said James r. Hay, by shooting
him with a pistol.
To this charge the defendant pleads
that he is not guilty. and you are in
structed that such plea puts in issue
every essential fact constituting the
crime Of murder, and casts upon the
state the burden Of proving every such
fact constituting the crime charged, to
your satisfaction beyond a reasonable
doubt.
Murder Defined.
2. Murder, as defined by the statute
Of this state, IS the unlawful killing Of
a human being with malice afore-
thought. Such malice may be express
or implied. It is express when there
is manifested q deliberate intention IN
lawfully to take away the life of
fellow creature. It Is implied when no
considerable provocation appears, or
when the circumstances attending the
killing show an abandoned or malig-
nant heart.
8. Every murder. says the statute,
perpetrated by poison, lying in wait,
or any other kind Of willful. deliberate,
malicious and premeditated killing, or
committed ia the preparation of, or
attempt to perpetrate any arson, rape,
burglary or robbery, or perpetrated
from a premeditated design unlawfully
and maliciously to effect the death Of
any human being other than him who
is killed; or perpetrated by an act
greatly dangerous to the lives Of others,
and evincing a depraved mind, regard
less Of human life, is murder in the
first degree.
While, however, the law requires that
the killing in order TO constitute muir
der in the first degree must be perPe-
trated from a premeditated design
with a specific intent TO take life still
it does not require that such premidi-
tated design shall exist in the mind OF
the perpetratOr for any fixed period Of
time before the doing Of the act which
constitutes the crime; II there was such
design and determination to kill de-
liberately formed in the mind at any
moment before the fatal act was done,
it is sufficient.
4. Murder in the second degree is
the unlawful killing OF a human being
with malice, but without deliberation
or premeditatiOn. The term malice. in
law, means a wicked intention Of the
mind. a wish to vex. annoy, trouble or
injure another person.
Manslaughter, Two Kinds
;. Manslaughter is the unlawful
killing Of a human being without NAL
ice. It is Of two kinds, voluntary and
involuntary. Voluntary manslaughter
Is where the killing is upon a sudden
quarrel or heat Of passion. do not
deem it necessary to instruct you as 70
the law relating to involuntary man
slaughter, because as to this offense
there IS no evidence in this case.
6. The burden Of proof rests upon
the state 10 prove all the essential acts
constituting the offense charged to
your satisfaction beyond a reasonable
doubt. The manner and cause OF death,
as alleged in the information. is an es-
sential element Of the charge against
the defendant; 50, also, are the charges
stated in the information: First, that
the killing occurred In Salt Lake coun-
". state Of Utah; second, that the.
killing was unlawful; third, that the
killing was willful; fourth, that the
killing was felonious; hfth. that the
killing was deliberate; sixth, that the
killing was with malice aforethought on
the part Of the defendant; seventh, that
the killing was premiditated By the de-
fendant; eighth, that the killing was
the result OF q specific intention on the
part Of the defendant TO take life; and
ninth, that the life so intended to be
taken was the life Of a person named
in the information. II is not enough
that one or any part OF these charges
be proven beyond a reasonable doubt,
but 1t is necessary in order 10 justify a
verdict Of guilty Of murder in the first
degree. that each and every one Of the
allegations Of the information here
enumerated be proven to the satisfac-
ton of the entire jury and beyond a
reasonable doubt.
:. You are instructed that a mere
preponderance Of the evidence in favor
Of the prosecution is not sufficient to
convict the defendant. Before he can
be convicted each juror must be cor
WINGED OF his guilt beyond reasonable
doubt, and unless each juror has an
abiding conviction TO a moral certainty
Of the truth Of the charge against the
defendant, he cannot be convicted.
In Case Of Doubt.
S. You are further instructed that
the offenses Of murder in the second
degree and voluntary nanslaughter
are necessarily included in the offense
which is charged in this information,
and under our law 4 defendant may be
convicted OF either Of such other Of
lenses so included: and If in this case
IL shall appear to you that the defend
ant has committed a public offense,
and there is in your minds a reason
able doubt OF which Of two or more de-
grees he is guilty, you can convict him
Of the lowest Of such degrees only.
g. A reasonable doubt is fair
GOubt growing cut OF the evidence. or
lack Of evidence in the case. II is not
a mere imaginary. csptiOus OF possible
doubt. but a fair doubt. based upon
reason and common sense. II is such
doubt as may leave your minds. after
a careful examination Of all the evil
dence in the case in that condition that