The Stark County Democrat. [volume] (Canton, Ohio) 1833-1912, 1906-03-20

reasonable doubt before a verdict of
guilty can be returned against him
Murder in the second degree, one
| crime with which the defendant
| stands charged in the indictment.
consists In purposely and maliciously
| killing another Before the State can
ask a verdict of guilty against the
! defendant 1t must prove all of the
material averments of the indictme ment
by proof beyond the existence of a
reasonable doubt. ! will now endeav-
or to state more specifically what
these material averments which the
state must prove are. Before a ver-
dict finding the defendant guilty of
| the crime with which he stands
| charged in the indictment can be re-.
turned, the state must prove by proof
| beyond the existence of reasonable
doubt that on or about the 9th day of
| November, 1905, in the county of
Stark and State of Ohio, the defend
ant, Frank Stevens, unlawfully, pur-
posely and maliciously killed Joseph
Burk.
"BA the word unlawful used in the
indictment is meant contrary to law
! BY the. word 'purposely' used in the
statute and indictment is meant the
purpose with which the act charged wag
done. The word purpose in this cOnnec-
| tion is synonymous with intent, and it
means design, a resolve or determ-
! ination of the mind. BY the word
| maliciously' used in the statute and
indictment is meant with malice. Malice
is said to be the dictate of a wicked
| depraved and malignant heart IT is
I NN.,f ~
| should be confined to a particular i'll
will toward the person injured. 1t is
| evidenced by an action which springs
| from a wicked and corrupt motive
attended by circumstances indicating
a heart regardless of social duty and
bent on mischief In other words
malice is the doing of wrongful act
Intentionally, without just cause or
excuse. The purpose or intent with
which a thing is done is sometimes
proved by what the person who does
the act says in regard to the intent
with which it was done, but in gener-
al, purpose or intent is usually shown
by all the circumstances proved in
the case, by what the party said and
| did, and from which the Jury may,
when justified by the evidence, draw
a legitimate inference as to the intent
with which the act was DONE
MANSLAUGHTER INCLUDED.
AN indictment of murder in the
| second degree necessarily includes
the crime of manslaughter which is
a lower degree of homicide than muir
der in the second degree; and it also
necessarily includes the crime of as
sault and battery. Our statute pro
| tril hot 'nrba
another except as provided in the last
A.! three sections, which are the sec
| tions defining murder in the first de-
gree and murder in the second de-
gree, is guilty of granddaughter. In
tention or purpose to kill may be pres
sent in the crime of manslaughter
where the killing is without malice
upon sudden quarrel and the act of
maliciously killing another may be
manslaughter, but the act of purpose
ly and maliciously killing another is
murder in the second degree. BY an
| assault is meant an unlawful attempt
to do another an intentional bodily
injury. And by an assault and bat
terry is meant an assault which IS
! cOnsummated or executed by unlaW-
fully striking or beating another.
When the fact of killing is proved
! beyond the existence of a reasonable
doubt malice is to be presumed, and
| all the circumstances of justification
| excuse or eXtenuation must be made
out by the accused unless that appear
| from the evidence adduced against
| him. Upon the subject of Selfdefense
| desire to say to you that a man may
in his defense employ sufficient force
to repel the assailant. The law does
not measure nicely the degree of force
which may be employed by a person
attacked, and if he use more force
than is necessary he is not RESPONSE
bic for it, unless it is so disproportion-
ed TO his apparent danger as to show
wantonneSs, revenge or a malicious
purpose to injure the assailant.
CRIME OF HOMICIDE.
Homicide, or the killing of a hu.
man being is justifiable on the ground
| OF self-defense when the slayer in the
careful and proper use of his facul-
ties bona fide believes and has reason.
able ground to believe that he is in
imminent danger of death or great
bodily harm, and that his only means
OF escape from such danger will be by
taking the life of his assailant al
though in fact he is mistaken as to
the existence or imminence of the
danger. On the trial of an indict-
ment for murder the burden of PROV
ing that the homicide was excusabIe
on the ground of selfdefense rests on
the defendant and must be establish
ed by preponderance of the evi-
dence.
Under our system of Jurisprudence
the State may rely for the conviction
of the defendant upon either direct or
circumstantial evidence, or both; but
whether it relies for conviction upon
direct evidence, or circumstantial evi-
dence, or by combination of the two,
the evidence which it introduces must
satisfy the jury that the defendant is
guilty of the crime of which he stands
charged in the indictment, or some
crime necessarily embraced therein,