The Birmingham age-herald., 1909-03-18

schemes to do the deceased some boolly harm.
 Malice is implied in contemplation of l law, by such wanton and cruel conduct as shows a heart regardless of social duty l and fatally bent on mischief. Malice 1 necessary 10 constitute murder in the sec- 1 ond degree is not confined to an inten- ton 10 take the life of the person actually l killed as in the case of murder Tn the | first degree but includes an intention to 1 do any unlawful act which may probably result in depriVing a person of life. The l legal rendering of malice as applied in l eases of murder in the second degree is l that t fs not confined to homicides com mitted in cold blood with settled design and reconciliation, but extend to all cases how sudden so ever the occasion, when the act is done under such cruel circumstances as are ordinary indications of a wicked, depraved and malignant spirit. as when the punishment inflicted by a party. even upon proVocation, is outrageous in it's nature and continuance, and beyond all proportions to the offense so that 1t is to be attributed to malignlty and brutality, rather than human infirm- itv. Where the use of a deadly weapon by the party killing is shown and the death is clearly shown in the proof to have resulted from it's use by him, it is presumption of law that the killing was done maliciously; that is, that malice re- quired to support murder in the second degree"
 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 rebutted and overturned by competent and creditable proof, sufficiently strong to satisfy you beyond reasonable doubt that the defendant is guilty of some one of the offenses which have been here tofore defined and explained to you.
 By reasonable doubt is not meant that which of possibility may arise, but it is 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 Ab- solute certainty is not demanded by the law to convict of any criminal charge, but moral certainty is required"
 Law of Self-Defense.
 SeTf-defense:
 'eThe law of self-defense is thus de-
 
 a homicide, the danger of death, of great bodily injury must either be real or honestly believed to be so, al the time and upon sufficient grounds. It must be apparent and imminent Previous threats, and even acts of hostility, how violent soever they may be, will not of them selves, excuse the staying, but there must be some words or overt act (that is some open, manifest, perceivabe act) at ba time plaarlU indicative nf Ruf purpose to the injury, and whether there was at the time such an overt act on the part of the deceased toward the de- fendants. and what would or what would not be such overt act on his part is a mat ter for you, the jury, to decide, upon all the circumstances and facts shown in the proof of previous friendship or hostility and all the other surroundings of the case.
 Past threats or hostile actions, or an- tecedent circumstances can only be looked in to connection with present demonstra- tons, as grounds of apprehension on the part of the person doing the killing.
 Degree of Punishment.
 Judge Hart next explained the punish ment for the different grades of murder. For the first degree of murder the pen alty Is death, but if there be mitigating circumstances a recommendation to this effect may accompany the verdict. The court may or may not reduce the penalty from death to life Imprisonment, The penalty for second degree murder is from 10 to 20 years, of voluntary manslaughter ? to 10 years. of involuntary manslaugh- ter one to five years. He explained that the Jury was the sole judge of the law and the facts and must apply the law to the facts, that 1t was the judge of the credibility of witnesses and that previous good character was witness for the defendants and previous bad character effected their credability as witnesses. This rounded out the statutory charges, which the law provides in all murder cases and brought the court down to his instructions as to the theories advanced during the arguments by counsel on both sides.
 Definition of Conspiracy.
 "A conspiracy, gentlemen of the jury, is an agreement entered into between two or more persons by concerted ac- ton to do some unlawful act. It is not necessary, in order that they be- come co-conspirators, that they should talk the matter over and agree as to what portion each one should perform. It is sufficient if there is a tacit un- derstanding between them to do the act and that each of his own volitfon chooses the part he is to take and per- form in carrying out of the general purpose"
 Judge Hart next described the theory of the state and to the causes of the murder, commencing with the joint de- bates and running on down to the edi- torials and up to the hour of the kill ing. Every bit of the states evidence was incorporated.
 Tt is further insisted by the state that the defendant, Robin Cooper killed the deceased, E. W. Carmack, in the manner and form as above set out and described and that the defendant D. B. Cooper was present, aiding and abet- ting and ready and consenting, etc., to aid and abet him, the said Robin Coop CT, in the killing of the deceased and that as above stated it was the result of a previously formed plan entered into with deliberation and premedita- tion, and with special malice toward the deceased on the part of the said defendants, D. B. Cooper and Robin Cooper.
 John Sharp's Case.
 "The state further insists that the de- fendant, John D. Sharp, was nearby, if necessary, to participate in any way that might be necessary in the killing, or was there for the purpose of making himself witness in behalf of said defendants, D. B. Cooper and Robin Cooper.
 Now, gentlemen, if you believe this insistence to be true and fully warranted by the facts, and are satisfied of the same beyond reasonable doubt, it would be your duty to convict all the defend ants of the crime and felony of murder in the first degree with or without init igation. Or, gentlemen, if you believe taking all the circumstances and condi- IL.