Atlanta semi-weekly journal. (Atlanta, Ga.) 1898-1920, 1909-03-19
Ither be expressed or Implied.


sedate and deliberate mind formed a de-
sign toward particular individual to kill
him, which formed design is evidenced
by external circumstances disclosing the
inward intention, such as lying in wait,
antecedent threats, former grudges and
concerted schemes to do the deceased
some bodily harm.
Malice is implied in contemplation of
law, by such wanton and cruel conduct
as shown a heart regardless of social
duty and fatally bent on mischief Malice
necessary to constitute murder In the sec
ond degree is not confined to an inten-
ton to take the life OF the person ac-
tually killed las in the case of murder
in the first degree). but includes an in
tention to do any unlawful act which
may probably result in depriving a person
OF life.
THE legal rendering Of malice as applied
In cases Of murder In the second degree,
| is that II is not confined to homicides
committed in cold blood with settled de-
sign and premediation, but extend to all
cases, how sudden soever the occasion,
| when the act is done under such cruel
| circumstances as are ordinary indications
OF wicked, depraved and malignant spir-
IT, as when the punishment inflicted by
! a party, even upon provocation. is outra-
geous In its nature and continuance, and
beyond all proportion to the offence, so
that 1t is to be attributed to malignity
and brutality, rather than human mfr
| nifty. Where the use of a deadly wea-
pom by the party killing is shown. and
the death is clearly shown in the proof to
have resulted from its use by him, 1t is
a presumption OF law that the killing was
done maliciously, that is, that malice re-
quired to support murder in the second
/ degree"
Defines Heat of Passion
Judge Hart defined heat of passion as
excitement of such nature as would
obscure the reason of any ordinary man
and render him liable to do an act which
might cause death.
Previous threats by the deceased
against the defendant, or acts of HOSTILE
! ty toward him, or previous abuse of him,
! how violent soever it may be, or tres
passes upon his property, is not such
/ proyocation as the law recognizes as suf-
! ficient to reduce an unlawful killing to
manslaughter If the killing was done at
such time as had elapsed after these
| things had been done, as reasonable
person would have regained self-controli
and a killing under these circumstances
would be deemed by the law malicious
| and not the result of the provocation,
! and therefore, murder. In other words, If
/ there had been sufficient time for the
| passion to cool, the provocation will not
mitigate a subsequent killing to man
| slaughter The question is not whether
the blow was actually struck in the con-
/ tinuance of passion, but whether
there had been a reasonable time for the
passion to cool in the case of an ordi-
| nary person. or whether the defendant
did actually commit the homicide in cold
/ blood. This must depend upon the cir
cumstances of the particular case under
investigation, and is a question for the
| Jury to determine.
| Involuntary Manslaughter
involuntary manslaughter is case of
killing where it plainly appears that death
was not intended, but was the result OF
some unlawful act, or the result OF some
act not strictly unlawful in itself, but
done In an unlawful manner, and without
due caution.
''You enter upon this investigation with
the presumption that the defendant is not
guilty of any crime, and this presumption
! stands as a witness for him until it is re-
butted and overturned by competent and
credible proof sufficiently strong to sat
! isfy YOU beyond a reasonable doubt that
the defendant is guilty of some one of the
offenses, which have been heretofore de-
fined and explained to you.
by reasonable doubt is not meant that
| Wnicna OF possibility may dIlSCt Jul II 10
that doubt engendered by an investigation
of the whole proof, and an inability, after
such an investigation, to let the mind
rest easily upon the certainty of guilt.
Absolute certainty is not demanded by
the law to convict of any criminal charge,
but moral certainty is required.
Self Defense S.
"The law of self defense is thus defined
by our supreme court: To excuse homi-
eide, the danger of death or great bodily
injury must either be real or honestly be-
lieved to be so, at the. time and upon
sufficient grounds. It must be apparent
even acts of hostility, how violent soever
they may be, will not of themselves, ex-
cuse the staying, but there must be some
words or overt act Chat is, some open,
manifest perceivable act) at the time
clearly indicative of a present purpose to
do the injury; and whether there was at
the time such an overt act on the part
of the deceased toward the defendants
and what or what would not be such overt
act on his part is a matter for you, the
| Jury, to decide, upon ali the circum-
stance and fact shown in the proof of
previous friendship or hostility, and all
the other surroundings of the case.
AS To Past Threats
Past threats or hostile actions, or ante
cedent circumstances, can only be looked
into in connection with present demonstra-
lions, as ground OF apprehension on the
part of the person doing the killing.
ITO constitute this defense, the belief or
apprehension of danger must be founded
on sufficient circumstances to authorize
the opinion that the deadly purpose then
existed and the fear that 1t will at that
time be executed. The animosity of the
deceased against the defendants as indi-
Gated by words or actions then and before
is a proper matter for the consideration of
the jury, on the question of reasonable APP
prehension, and even If sufficient cause
does exist for apprehension, but II the
killing is not done under the fear it is
calculated to inspire, or the fear is feign-
ed or pretended, the defense will not be
available. So a case must not only show
reasonable grounds for fear of death, or
great bodily harm. but must show that
such fear was entertained and the killing
done under an honest and well founded
belief that It was absolutely necessary to
kill the deceased at that time to save
himself from like injury or from a great
bodily harm, and these rights of defend
Don't Wear