The citizen. (Honesdale, Pa.) 1908-1914, 1911-01-25

with malice either expressed or i'm
piled.
A person cannot be convicted of
murder of the first degree unless the
jury find that the murder was will
full, deliberate and premeditated.
These are the words of the Act of AS
sembly we have referred to- This
Act also refers to murder perpetrat-
ed by poison, or by lying in wait, or
in the preparation of one of the
great felonies, arson, rape, robbery,
Ior burglary, but every other kind of
wilful, premeditated and deliberate
murder is murder of the first degree.
And every other murder, not enumer-
ated as we have stated, is murder of
the second degree.
Murder of the second degree is
where a felonious and malicious hom-
icide is committed but where no
specific intent to kill exists, or can
be reasonably and fully inferred. 1t
may consist of unlawful killing, with
malice either expressed or implied
with intent to commit grevious bod
lily injury upon the person assailed.
Judge Agnew, in the case of Com
monwealth VS.. Drum, said, Judge
Rush, in the case of Commonwealth
VS.. Richard Smith, has said, 1T is
equally true, both in fact and from
experience, that no time is too short
for a wicked man to frame in his
mind the scheme of murder and to
contrive the means of accomplishing
it,. But this expression must be
qualified lest it be misunderstood.
1t is true that such is the swiftness
of human thought, that no time is so
short in which a wicked man may
not form a design to kill, and frame
the means of accomplishing his pur-
pose; yet this suddenness is opposed
to premeditation, and a jury must be
well convinced upon the evidence
that there was time to deliberate
and premeditate. The law requires,
and the jury must find, the actual
intent; that is to say, the fully form
ed purpose to kill, with so much time
for deliberation and premeditation as
to convince them that this purpose
is not the immediate offspring of
rashness and impetuous temper, and
that the mind has become fully con-
scious of its own design. If there be
time to frame in the mind, fully and
consciously, the intention to kill, and
to select the weapon of death, and
to think and know beforehand,
though the time be short, the use to
be made of it, there is time to de-
liberate and to premeditate."
The second count of the indictment
in this case contains charge against
the defendant of voluntary man
slaughter. 1t is voluntary man
slaughter where one, in the heat of
passion, and without malice express
ed or implied, under great provoca-
tion, kills another. Voluntary man
slaughter often so nearly approaches
murder, it is necessary to distinguish
it clearly. The difference is this:
Manslaughter is never attended by
legal malice or depravity of heart
that condition or frame of mind be-
fore spoken of, exhibiting wickedness
of disposition, recklessness of conse-
quences or cruelty. Being sometime
wilful act, it is necessary that the
circumstances should take away
every evidence of cool depravity of
heart or wanton cruelty. Therefore,
to reduce an intentional blow stroke
or wounding resulting in death, to
voluntary manslaughter, there must
be sufficient cause of provocation,
and state of rage or passion, with
out time to COOL placing the defend
ant beyond the control of her reason
and suddenly impelling her to the
deed.
An unlawful, felonious and malici-
GUS homicide is presumed to be muir
der, but not presumed to be murder
of the first degree, that presumption
rises no higher than murder of the
second degree, and if the Common
wealth desires to prove the defend
ant guilty of murder of the first de-
gree, the burden is upon it of raising
the crime to that degree, and it must
satisfy the jury of those facts and
circumstances which. indicate the
wilful, deliberate and premeditated
intention to kill and the cool de-
pravity of heart and conscious pur-
pose which constitute, as before stat
ed, the crime of murder of the first
degree.
And also, the burden of reducing
the crime from murder to manslaugh-
ter, where it has been proved that the
defendant committed the deed, lies
on her. She must show all the cir
cumstances of alleviation or excuse
= upon which she relies to reduce her
offense from murder to a milder kind
of homicide, unless indeed all the
facts already in evidence show it.
In considering this case, we have
stated that the credibility of the wit
ness is a question entirely for you.
The court has nothing to do with the
consideration whether a witness shall
be believed or not or what weight
shall be attached to his testimony.
You have seen the witnesses on the
, stand. You have observed their
manner of testifying; with what de-
gree of frankness and candor they
; testified; in what manner they have
Withstood their cross-eXamination
the contradictions, if any, in their
evidence; whether any of them mani
tested disposition to withhold
facts, or to press facts uncalled for
upon the attention of the court and
jury; whether you find indication of
bias in the appearance or testimony
) of any witness.
, You should consider especially the
interest which the witnesses have in
/ this case, or the apparent interest
7 which they manifest in the issue.
, The relationship, if any, which may
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