The times dispatch. [volume] (Richmond, Va.) 1903-1914, 1907-06-29

person with malice aforethought and is dis
tinguIshed by the law of Virginia as murder
Of the first and murder of tho second de-
greo.
9. Murder by poison. lying In wait. i'm
prisonment, starving or any wilfu dellb-
crate and premed!tatcd killing, or In the
commission OF. or attempt tc commit arson,
rape. robbery or burglary, Is murder Of the
first degree. All other murder is murder OF
81 Every homicide In Virginia is presum-
ed to be nui der Of the second degree; IN
order to elevate the offcnse to murder OF
the first degree, the burden OF proof Is upon
the Commonwealth, and to reduce 1t TO
mansaughter the burden 81 proof Is upon
the prisoner.
A To constitute wllfu deliberate and
premeditnted killing, 1t is necessary that the
killing should have been done on purpose
and not by accident, or without design; that
tho accused must have reflected with view
! to determine whether he would Kill or not,
and that he must have determined to XIII
| rs the result of tho reflection before he
| does the aCt--that Is to say.-the killing
must be a predetermined killing upon con-
| sIdcratlon, and not sudden killing upon the
momentary excitement and impulse OF pas
sion upon provocation given at tho time, or
SO recently before. as not to allow time for
reflections; and this design to kill need not
! have existed for any particular length OF
| time
| 1t may be formed at the moment Of the
| commission of the act.
/ &. Mansaughter is the unlawful killing
of human being without malice afore-
/ eithor voluntary upon sudden passion or heat
/ of blood caused by reasonable, provocation
| or involuntary in the commission OF some
unlawful act.
I. C. 10 reduce homicide from murder to
| granddaughter, the killing must take place
undor the first transport of passion. for n
/ the passion hid time to cool OF tho blood
| had actually cooled tho killing is not re-
duced to manslaughter. If the slayer re-
fatal fatal" act was done or III he had reasonable
time or opportunity for cooling, the killing
win amount to murder. But this instruction
/ is to be read in connection with No. T.
& There is no fixed rule for determining
how much time is required for cooling; In
the nature of things this must depend upon
nature and provocntiors but in determining
/ what is cooling time the inquiryis whether
the suspension Of reason arising from
sudden passion continued from the time the
provocnton was received to he very instant
that the fatal act was done for If from
any circumstances whatever the. slayer re-
i fatal act was done, or there was time or
/ opportunity for cooling. the killing will
amount to. murder, as being attributable to
i malice and revenge rather than human
fralty.
1t is enough to show that there was a
reasonable tme for cooling, for the law re-
trolling their passions. But the Jury are the
sole Judge of whether, under all the cir
i cumstances OF any case, passion has actually
cooled and arc likewise sole Judges OF
whether, under all the circumstances of any
case there has been opportunity for cooling
/ $. II the jury believes from the evidence
4 that the accused shot and killed Theodore ]
Estes w!lfully, deliberately and premodi.
tntndly, the crime is murder of the first
degree; but II at the time Of the killing
the accused was lnborlng under ungovern.
able passion. aroused by the communication
made to him by his daughter and h,s
ibrother-in-law, II. S Snend, and that In thu
) first TRANSPORT OF passion, aroused by sale
communications. ho shot and killed the de
ceased before his passion had actually cool
ed. or his blood had time 10 COOL thon. snit
killing was voluntary manslaughter. Du
! this Instruction must be read In connection
With No. 4
n .. The court instructs the jury that tn
defendant is In law presumed to be nnocen
of the crime with which he Is charged ant
this presumption OF innocence continues ant
applies at every stage OF the case until hi
guilt is established by evidence beyond
reasonable doubt, and unless and until 1t
7 so established, ha is entitled to verde
/ of ncquitnl.
10. The court instrucs the Jury tina
except rs to tho defense of insanity In re
spoct to which the burden Is on the de
: PENDANT to establish II to the satisfaction q
tho jury, the defendant Is entitled to tn
y benefit of every reasonable doubt In til