The Montgomery advertiser., 1909-03-18
COOPER JURY IS OUT
tc..s..ues iron r.s. o.eo

te3 (COut1nued From Page OneD
 er pre-existed in the mind for any uonnite period of time anterior to us execution.
 s'The purpose to kill is no less pre- msditAted, in the legal sense or the torn. if 1t was deliberately formed put . minute preceding the act by which death Ia produced than if 1t had been formed an hour or other period or time before. The question of vital import sncer is. was the mind of the assailant nt the moment of the killing. so far free from excitement. or passion as to Zbe capable of reconciliation. as before explained, and was the death of the party slain the object sought to be sccomplished-the end determined on.
 Judge Hart defined malice and de. elared it was the principal insredient of murder in the second degree. lie said 1t could either be expressed or implied. ,.x
 ..Expressed malice is whereone. with q sedate and deliberate mind formed | destgn as evidenced by external CIT cumstances disclosing the inward in- tention. such as lying in wait. antece- dent threats. former grudges and con, certed sche emes to do the decreaseo some bodily harm.
 ..Malfce is implied in contemplation 70
 duct as shown a heart regardless o' aocial duty and fatally bent on mis- chief.
 .sSaalice necessary to constitute mur' fer in the second degree is not comm, ed to an intention to take the lie oi the person actually killed 6as Tn .he case of murder in the first degree) ou' includes an intention to do any un. lawful act which may probably resui fin deprivfng a person of life. Ihe ie gal rendering of malice as applied III eases of murder In the second degree ! is that 1t is not confined to homicldes committed in cold blood with settieo design and reconciliation but exteno to all cases how sudden soever the oc' casion, when the act IS oohe s,,, e1,ci, cruel circumstances as are orolh. arv occasion of wicked, depravee ana malignant spirit. as when the pun ishmeut inflicted by a party. even up on provocation. Is outrageous III I.s nature and continuance and beyond ai proportions to the offense. so Una. it is to be attributed to malignity ana oru'
 Use of Deadly Weapon.
 .vvnere the use of a deadly weapon by the party killing ia shown, ana tns death Is clearly shown in the piooi U U. have resulted from its use by nim' {, is a presunption of law that Ihe Nil, ing was done maliciously, that is. .na malice required to support muroer 'i the second degree" .,or
 Judge Hart defined heat or passiol as excitement of such nature a' would obscure the reason of any oro mary man and render him liabie to o' an act which might cause death
 Previous threats by the oecease' against the defendant, or acts or nos tiiity toward him, or previous aouse ~ him. how violent soever It may pe' VI trespasses upon his property. IS no such provocation as the law recognizes as sufficient to reduce an unlawtui hiii ing of manslaughter If the Killing va done at such time as has elapsed ai.eI these things had been done as reas onable person would have regaine' eeIf-control, and killing under thes' cIrcumstances would be deemed by th' law malicious and not the result or th' provocation. ..,.
 And therefore. murder In othe words. if there had been sufficient tim for the pa ssion to cool, the provocatloi will not mitigate a subsequent klilin' to manslaughter. The question Is no whether the blow was actually strucl in the continuance of the passion. ou whether there had been reasonanl time tor the passion to cool In th case of an ordinary person. or whetne inc defendant did actually commit tn homicide in cold blood. This must de