The Batesburg advocate. [volume] (Batesburg, S.C.) 1901-1911, 1903-10-21

such formed design being evidenced
by external circumstances which dis
cover the inward Intention, such as
lying In wait, antecedent menacing
threats, former grudges pnd concerted
schemes to do somebody harm.
Now, as / said to you before, to
constitute murder, it must. be done
with malice aforethought and that
may be either expressed or implied
| have just told you what expressed
malice is.
Now, implied malice Is such as
the law inferS or implies from the kill.
ing itself. If the killing is proved,
and none OF the attendant circum-
stances, then the laws infers or pre-
sumes that the killing was done with
malice aforethought. That is what Is
meant when we speak OF implied NAL
Ice, but, gentlemen, when all OF the
circumstances attending the killing
are related to you, you have no right
then to infer anything, you must look
Al those circumstances as they are de-
tailed TO you by the witness es. and
from those circumstances you must
say whether or not the killing was
done with malice aforethought.
IN WHAT MANsLAUGHTER CONSISTS.
"Manslaughter is the killing of a
human being in sudden heat and pas
sion and upon sufficient legal provo.
cation. This, gentlemen, Is said to
be one OF the charities of the law. In
its tender gegard for the frailities of
our nature it recognizes the fact that
under certain circumstances we are
liable to be so far transported beyond
ourselves that we act from passion
and not from reason. When one is
suddenly thrown into n passion or
transported beyond himself, reason
loses its sway and he acts from pas
sion. If he has sufficient legal provo
cation for that passion then the law.
In its mercy, says that is not murder,
but manSlaughter.
Il will call your attention to tho
fact that if sufficient time elapses be-
tween the receiving of the provocation
and the act OF killing TO enable the
blood To cool, TO enable passion to sub
side, TO enable reason to resume its
away, then the law says blood must
cool, the passion must SubSide, reason
must assume its away and holds the
man to as strict an accountability as
II he had not received the provocation.
In this case your inquiry will be,
has n. G. Gonzales been killed? Did
James III. Tillman kill him? IL So an
der what circumstances was the kill
ing done? Was the killing feloniouS.
such as the law Furnishes for? II so,
under what circumstance was the
killing done? Was the killing faloni.
Gus, such as the law Furnishes for? II
SO, was 1t murder or man slaughter,
or was the killing eXcusable? These
are the questions you will ask your
self.
WHAT THE DEFENDANT CLAIMS.
The defendant sets up the plea of
selfdefence; that is, that he did the
killing TO save his own life, or to avoid
serious bodily harm to himself Ii the
defendant has established his plea o.
Self-defence, then he is eXcuSabie apd
your verdict should be not guilty.
The plea of selfdefence, gentlemen, is
founded on the idea OF necessity: that
is, that it was necessary to take the
life of fellow man to save ones own
life or TO avoid serious bodily harm
For the defendant to establish his
plea of Self-defence he must satisfy
you, gentlemen, of four things, not
beyond a reasonable DOUBT, but by the
preponderance of the evidence. Rem
ember, that he must satisfy YOU, not
beyond a reasonable doubt, but by the
prepOnderance OF the evidence of four
things: First, that he was without
fault in bringing on the difliculty; sec
Ond, that lie believed at the time that
he was In danger of receiving serious
bodily harm or losing his life, aud
that it was necessary To take the l'Ie
Of his aSSailant
He must go fun ther and show you
that reasonable man, L man OF Ordin-
airy tirmneSS, courage, prudence and
reason, Stituted as he was, would hav"
come To like conclusion. Now,
gentlemen, the question is, not what
you would have done, or what | would
have done, but the question is, what
would man Of ordinary firmneSs and
reason and prudence, what conclusion
would he have reached?
Fourth, that he had no other
probable means of escape.
If he has shown these four things
TO your satisfaction 10y the prepunder-
ance Of the evidence, then his plea Of
Self-defenSc is established and he is
entitled to an acquittai at your hands
Now, gentlemen, what is prepond-
erance Of the evidence? 1t means
| the greater weight OF the evidence.
1T is usually illustrated thus: If you
put the evidence in favor OF the plea
in one pan OF the balance and the
evidence against the plea i'm the other
pan Of the balance, and the evidence
in favor Of the plea bears down the
testimony against it, it outweighS, it
prepOnderates, and the plea is estab
| liShed.
WHAT TIE STATE MUST PROVE.
1t Is necessary for the State to
establish it's case to your satisfaction
beyond a reasonable doubt, and stric-
ter degree OF proof is required OF the
State than is required OF the defen-
dant. The State must make out It's
case to your satisfaction beyond a
reasonable doubt. Now, what is a