The Leon reporter. (Leon, Iowa) 1887-1930, 1904-06-02

crime of murder in the second degree,
which crime the court will now define
as it is known under our law.
Whoever commits murder as defined
in these instructions in any other man
ner than as described in these instruc-
tions as constituting murder in the
first degree, is guilty of murder in the
second degree.
Malice is AL essential ingredient of
murder in the second degree. To con-
stitute murder in the first degree the
killing must be willful, deliberate and
premeditated: all these must concur to
constitute that crime. But in murder
in the second degree, some of these
elements may be absent. 1t need not be
wi!lful; that is, the specific intent to
Kill need not be shown and deliberation
and reconciliation are not required.
Any killing with malice aforethought,
either express or implied, other than
murder in the first degree, constitutes
murder in the second degree.
AS applied to the case at bar: if you
find that the defendant killed the said
w. e. Bracewell with malice afore-
thought, either,express or implied as
already defined, and that he did not
kill him in willful, deliberate and pre-
meditated manner, he would be guilty
Of murder in the second degree and you
should SO find, but if you do not so find
you should acquit him of murder and
next consider the crime and charge of
manslaughter, which crime the court
will define as it is known to our law.
8. Manslaughter is the unlawful kill
ing OF human being without any NAL
:@I
is the felonous killing of human being
with malice. Manslaughter is the felon,
GUS killing without malice.
Where the killing is intended, but the
act is committed in the heat of passion
induced by some great provocation
i which the law, in tenderness for the
frailty of human nature considers suffice
i! lent to palliate the degree of the crime,
! is manslaughter.
AS applied to the case at bar: if you
find the defendant killed the said w. e.
Bracewell, but did so without malice
and that such killing was unlawful and
without justification, you should find
the defendant guilty of manslaughter.
.. Ii you do not find the defendant
guilty Of manslaughter, you should re-
turn verdict of not guilty.
10. 1t is claimed on behalf of the de-
PENDANT that he was acting in self de-
1 tense.
On this subject you are instructed
that the right of self defense is jeal-
ously guarded by the law. Under the
laws of this state a person who is UNI
lawfully attacked and assaulted has the
right to resist and repel that assault by
force sufficient to prevent tho same.
One has the right to resist an unlawful
attack by force on his person to the ex-
tent of overcoming such unlawful attack
and if to preserve his life or save him
self from great bodily injury it becomes
necessary to take the life of the assail-
ant he may do so. The degree of force
which the assailed may use lawfully is
determined and limited by the vigor,
nature and apparent danger of the
assault. The law approves a successful
resistance, but the party assaulted, after
he has fully and fairly repealed the I'M
lawful assault, cannot lawfully 20 fur
Their, and, if he does 60 further and uses
more force than necessary, that he him
self becomes the aggressor and becomes
guilty to the extent Of such unnecessary
and unlawful force as is used by him.
But where one is in danger merely of
assault by the fists Of his assailant, he
would not be justified in taking his life.
To justify the taking of life, the person
assaulted must be in danger of losing
his own life or of suffering some great
bodily injury at the hands Of his assail-
ant; and it is furthermore the duty of a
person in such danger of death or great
bodily injury to retreat and withdraw
from the encounter if an avenue of es-
cape is open and he can withdraw with
safety.
II. In reference to the danger refer
red to in the last instruction, you are
instructed that if a person is assaulted in
such way as to induce in hima reason
able belief that he is in actual danger of
losing his life or of suffering great bod
lily harm, he will be justified in defend
ing himself by taking the life of his
assailant, although the danger was not
in fact real but only apparent. The
test is, how did the danger appear to
the person assaulted as reasonable and
ordinarily prudent man, at the time OF
the assault and under the circumstances
then present and known to him? The
dangers of the situation must be adj
judged by the party assaulted, and he
will not be excused or acquitted for
taking the life of his assailant unless
the facts as they JhuS appeared would
have justified reasonable belief that
there existed an actual necessity for it
In the case at bar you should give the
defendant the benefit of every fact
which was apparent to or known to him
at the time, which would give him any
Indication of the extent of the danger.
He cannot be excused if he acted on an
unreasonable conclusion as to the dan
ger, based on the facts as known to him
The question is not what conclusion he
did in fact draw from the circumstances
but what conclusion ought reasonably
to have been drawn from them by him
at the time.
4 -. The burden is on the state to
prove beyond reasonable doubt that
in doing the acts complained of the de-
PENDANT was not acting in self defense,
and unless you are abidingly satisfied
that the defendant was not acting in
self defense, you should acquit him.
i 10. Should you find from the evil
dence that the defendant cursed and
swore at the deceased and called him
vile names, you are instructed that the
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