The Leon reporter. (Leon, Iowa) 1887-1930, 1904-06-02
MURDER IN THE SECOND DEGREE
Continued from page Q.

must be established by the state before
you would be justified in finding the de-
PENDANT guilty of murder in either
degree.
By malice is meant not only anger,
hatred and revenge, but any other I'M
lawful or unjustifiable motive. 1t is not
confined to ill-will against the ,individ-
ual, but is intended to denote an action
flowing from any wicked and corrupt in
tent. An act done with wicked mind,
and attended with such circumstances
as plainly indicate heart regardless Of
moral and social duties, and fully bent
on mischief, indicates malice within the
meaning of the law.
The word "aforethought" used in con-
nection with the word malice, in our
law, means simply thought out or con-
ceived before hand.
But it is not necessary that such
malice should have existed for any con-
siderable length of time to constitute
malice aforethought within the meaning
of the law. 1t is sufficient if it exists
for any length of time before the COM
mission of the act.
Malice aforethought may be either ex-
press or implied.
Express malice means settled pur-
pose and design to commit the offenso in
question and must be shown by proof of
that fact directly and without inference.
1t may be proved, as generally under
stood, by expression of hatred, threats
and the like.
be inferred from the acts and facts
shown. Thus, when a wanton, wicked,
cruel or revengeful act is shown, the in
bn lro
that the person who did such act was
actuated by malice. And when one per-
son assaults another with a deadly
weapon-that is, weapon that will
likely produce death-the law presumes
malice from that fact alone in the alb
sence of proof, either direct or implied,
to the contrary. The selection and use
of a deadly weapon, such as revolver,
in deadly manner, without legal ex-
cuse, raises presumption and is evil
dence of malice.
If YOU find and determine from the
evidence that the defendant, John Hay
den, did on the Sth day of January, A..
D., 1904, kill w. e. Bracewell a human
being, in Decatur county, Iowa, as
charged in the Indictment, with malice
aforethought, either express or implied,
as heretofore explained in these instruc-
tions, he is guilty Of murder, and the
degree thereof will be determined by
you as hereinafter explained in these
instructions.
5. Murder is Of two degees, first
and second, and if you determine that
the defendant is guilty of murder it will
be necessary for you to determine and
return as part Of your verdict the
degree thereof.
All murder which is perpetrated by
means of poison or lying in wait, or any
other kind Of wilful, deliberate and pre-
meditated killing, or which is commit
ted in the preparation or attempt to
perpetrate any arson, rape, robbery,
+ mayhem or burglary, is murder in the
first degree.
The state has not introduced evidence
which would warrant it in going to the
jury upon the theory the defendant was
guilty Of murder by lying-in-wait, and
is confined to the other charge, viz,
that the defendant did, as alleged, kill
the said w. E. Bracewell wilfully, de-
liberately, premeditatedly and of his
malice aforethought.
Any kind of wilful, deliberate and
premeditated killing with malice afore-
thought is murder in the first degree
and that charged in the Indictment by
which it is alleged that the defendant
killed the said W. E. Bracewell wilfully
deliberately, premeditatedly and of his
malice aforethought, is charge of MUIR
der in the first degree.
By the word "willful' as here used is
meant simply intended; and a wilful
killing is merely an intended killing.
AS applied to the case at bar: Ii you
a.. 10 4lo% %h1 J0f@
ant killed said w. Z. Bracewell and that
heidi so Intentionally, having that de-
sign and purpose in his mind at the time
would be deliberate killing within the
meaning of the law.
By the word deliberate" is meant re-
fected upon, considered. 1t is not
necessary that it should have been re-
f1ected upon or considered for any par
ticular length of tine, yet it should
proceed the doing of the act.
AS applied to the case at bar: if you
find from the evidence that the defend
ant killed the said w. 4. Bracewell and
that said killing was considered and de-
termined upon by defendant prior to the
act, then such killing would be de-
liberate killing within the meaning of
the law.
By the word "premeditated" is meant
planned, contrived or schemed and as to
this requirement no particular length of
time is required. 1t is sufficient if the
act was planned, contrived or schemed
and determined upon prior to the act.
As applied to the case at bar: if you
find from the evidence that the defend
ant killed the said w. E. Bracewell and
that such killing was planned, contriv-
ed OF schemed and determined upon be-
fore the act, then such killing was pre-
meditated killing within the meaning of
the law.
If you find from the evidence that the
defendant killed the said w. e. Brace
well and that said killing was willful,
deliberate and premeditated and of his
malice aforethought, as heretofore ex-
planned in these instructions, then the
defendant would be guilty of murder in
the first degree and you should so re-
turn.
And if you find the defendant guilty
of murder in the first degree, it will be
your duty to fix his punishment and