Gloucester County Democrat. (Woodbury, N.J.) 1878-1932, 1904-02-11

he has proved it.
OF course, if your verdict upon this is
favorable to the defense's theory of the
case, and if you find self defense is made
out, your verdict will be not guilty.
Now, laying aside that branch Of the
case as having been instructed upon it,
you come to the case which the State puts
forward The same circumstances, the same
facts, the same conflicts in testimony,
exactly, are to be weighed; but the ques-
tion il, how does the law regard such
things Well, where deadly weapon has
been used, producing death, the law
(laying aside, now, self defense) starts with
the idea that the use of a deadly weapon
presumes the malice which would make it
murder. What call murder you would
call murder in the second degree. The
aw presunes from the use Of deadly
weapon causing death, nothing more appear
ing, murder in the second degree And
starting from that presumption (which
would be the presumption in this case if
there was no self defense) the law works,
you may say, in two directions; because
there are three verdicts for the State, either
one OF which would be lawful under the
testimony in this case. The verdict, moth
ing more Appearing either way, presump-
lively would be murder in the second de-
gree. Now, in order to bring it to murder
in the first degree, then in addition to all
that goes to make up murder, to the nse OF
deadly weapon, to the possession OF a
purpose to kill at the moment, the State
must also prove that the state of mind Of
the defendants with respect to the murder
which he had occasi0ned was one that after
premeditation and deliberation and wis
fully knowing the effect of what he was
about to do. he committed the murder for
the purpose Of deprivinga human being OF
life.
Now. these are the added elements in
first degree which make it SO widely differ
ent from murder. Because the object of
the legis ature in creating the first degree
in murder is to place wide demarcation
between that and other murders, which is
shown by the fact that the penalty of death
is reserved solely for the kind of murder
which is in the first degree The object is
to stigmatize the state Of mind in which a
man, after he has premeditated and delib-
Grated, will then take the necessary means
of destroying human life. And IN laying
that down, as was suggested to you by one
of the counsel, the legislature lays it do~r
in this way they say chat anyone who
shal produce death by the administration
of poison, or by lying in wait''--now, you
will ohserye both OF these involve delibera-
tion, the mixing of poison, placing it where
a person can get it, or selecting an ambush
and there lying in wait for the victim
then it goes on to say, ''or any other delib-
crate, premeditated wilful murder"-sub
stantially saying any other murder in
which the previous deliberation and medi-
tation are ike that which man shows
when he hides in ambush, or when he
mixes a dose of poison for another y So
that while it may be true, as some Of our
older cases have said, that murder in the
first degree can arise without any appreci-
able length of time, yet it is for you to de-
termine what is meant by the words de-
liberation, premeditation They are COM
mon rds. You cannot make them plain
er. And you are to consider what must he
the state Of mind Of man when he is able
to deliberate. You know that in any
crisis, in any panic, such as arises from a
fire in building, or at any other time,
people act in way that is not prudent
and you all say that the reason was that
although they were there with plenty of
time to have acted prudently or deliher-
ately the state of their minds was not such
that they wou d act deliberately or pru-
dently And in civil cases it is the COM
monest thing in the world for person who
has cotton into place Of some danger to
act very imprudently, so that by his own
negligence he clear Y contributes to his in
jury; hut the law, even in regard to dam
age suits excuses him from the consequent
ces OF his negligence, because it says he was
in place OF danger where the human
mind does act smoothly and Tegu arlv. So
that if, your attention being G. lied to the
time when Payne was lying on the ground,
you are asked to say that he then premedi-
tated and delibelated the murder which
was to follow, the question is not whether
there was time enough alone, but was his
state of mind one which You would fairly
call mind that was in condition where
it could undergo those processes which you
would describe as deliberation, and would
his thinking about whas was to happen be
fairly characterized by the word premedi-
tation. The law and the legislature mean
those words in the ordinary sense in which
there is some fair degree Of mental balance
and mental opportunity to decide. The
word 'deliberation'' is itself very sugges-
tive. Ii comes from two Latin words
The Latin word libra means a SCALE and
delibra means that one side OF the scale
hangs down So the picture of the word,
as you take it f.om the dictionary is that
of person holding scales until one side
goes down, weighs more than the other; so
that the mental attitude is that of man
who weighs his conduct and finally makes
up his mind that one side weighs with
him more than the other--in case of MUIR
der that he would make up his mind that,
al things considered, he would have that
other persons life, and he would do it de-
liberately. that is, he wonld weigh ii, and
because he weighed it, finding he wanted
to do is, he would carry it out That is
the legal theory Of murder in the first de-
gree.
Now, murder in the second degree is
where man, uses a deadly weapon which
may result in death, knows that he may
kill and has intended to do it. but has nos
previously or deliberately medisaaed upon