The Telegraph-courier. [volume] (Kenosha, Wis.) 1888-1946, 1920-11-25

be determined by you upon the same
principles that you determine the cred
Utility and weight of any and all evil
\ dence in the case, that is, upon due
consideration of all tie facts and cir.
cumstances shown in the case. Wheth-
er you believe a confession or do not
believe it, whether you give heed
thereto or reject it, is solely for your
determination. It is for you to deter
mine, from all the evidence in the case
what the real facts are.
In determining the weight to be Civ
en- to any confession that you are
satisfied by the evidence was freely
and voluntarily made, which proceeded
from sense of guilt and not from
influence of duress or fear, you may
take in consideration all the circum-
stances under which they were made
respectively, including the bodily and
mental condition of the defendant at
the time of making the same. think
/ it will be apparent to you that con-
fession may be voluntary although not
volunteered. A confession need not be
offered by the accused in the first in
stance, in order to be considered as
voluntarily given.
Burglaries Not an Issue.
/ You need not undertake to deter
mine and you are not at. all concerned
as to whether the defendant commit
ted the several burglaries referred to
in the testimony, or any of them. That
testimony was received for whatever ii
may be worth in your judgment as
bearing upon and for the purpose OF
assisting you in determining in what
condition of mind the defendant was
at the time of making the several con-
fessions-whether he was subjected ia
and under the influence of coercion OF
fear in making them, or not, and
whether they were true or false.
The state charges the accused with
murder in the first degree.
You are instructed that to consti-
tute murder in the first degree the act
causing the death must have been per-
petrated from premeditated design
! Premeditated design to kill means in
tent to kill Design" means intent
and both words essentially imply pre-
meditation or design formed before the
act. The prem editation in the statute
does not, however, exclude sudden in
tent and need not be slow or last long.
What Premeditated Design Is.
Premeditated design need be only
such deliberation or thought as en-
ables a person to appreciate, at the
time the act is committed, the nature
| of his act and the probable conse-
quences. 1t is sufficient to satisfy the
law if the person committing the act,
has, at the time of infiicting the fatal
wound, design to take human life
and inficts such wound with the pur-
pose of accomplishing such design and
that death ensues.
While the law requires, in order to
constitute murder in the first degree
that the killing should be from pre-
meditated design, still, as l have sug-
gested, it is not required that such
generalization should exist for any
particular length of time before the
homicide is committed. 1t is not nee
essary that the killing should have
been brooded over, or reflected upon,
for week, day, or even for an hour.
The human mind acts with celebrity
which is impossible to measure, and
whether the premeditated design to
/ kill was formed must be determined
by the jury from all the credible evil
dence in the case. 1t is sufficient if
there was such design in the slayer's
mind at any moment before or at the
time of the commission of the act re-
sulting in death. There may be no
perceptible space of time between the
/ forming of the design and the act of
/ killing. 1t is enough that the inten-
tion to kill preceded the fatal act,
although the act followed instantly.
Submits Lesser Degrees.
also submit for your consideration
the lesser degrees of homicide, includ-
ed within the charge Of murder in the
first degree, murder in the second de-
/ gree and murder in the third degree.
The statute defining murder in the
second degree reads: "Such killing
when perpetrated by any act imminent
ly dangerous to others and evincing a
depraved mind, regardless of human
life, without any premeditated design
to effect the death of the person killed,
or that Of any human being, shall be
murder in the second degree
Murder in the second degree includes
all cases Of homicide without premedi-
tated design to effect death, committed
under the other conditions of the sta
tute defining murder in said degree.
These conditions are, first, that the
act producing death must be an act
"imminently dangerous to Others
second, that the act be of such charac-
ter as to "evince depraved mind re-
CARELESS Of human life; third, absence
of any "premeditated design to effect
the death of the person killed or of
any human being"
/ To point a loaded revolver at vital
part Of another's body and discharge it,
is to perpetrate an act imminently
dangerous to others, and if done with
out excuse or justification evinces "a
depraved mind, regardless of human
life" The distinction between murder
! in the first degree and murder in the