The Bismarck tribune. [volume] (Bismarck, N.D.) 1916-current, 1927-02-19

M0AICct 0lOEctuOukuts 3
The jurymcn asked an explanation
OF section of the statutes which
reads:
mo act committed by person
while in a state Of voluntary intox-
ication shall be deemed less criminal
by reason Of his having been in such
condition. But whenever the actual
existence Of any particular purpose,
motive or intent, is necessary ele-
'ment to constitute any particular
species or degree of crime, the jury
may take into consideration the fact
that the accused was intoxicated at
the time, in determining the purpose,
motive or intent with which he COM
mitted the act"
In explanation, Judge Jansonius
said:
Homicide to be murder in the first
degree must be either wilful, delib-
crate or premediated. Either Of the
elements infer intent.
I'm other words, there must be an
Intent to kin. This intent may have
existed long time or = short time.
But the element Of intent must be
present.
therefore, while drunken man is
subject to the same legal responsible
ity for his acts as sober man, and
while the same inference as to intent
may be drawn from his conduct as
from like conduct Of sober man
these are presumptions Of general
criminal intent only.
IF intent to kill did not actually
exist at the time Of the killing, il
could not be murder in the first de-
gree"
"If a man who committed a homi.
eide was so drunk, the fact he was
intoxicated may be considered to de.
termine whether the defendant could
form the intent to kill and if he
could not, it would reduce the homi-
eide to murder In the second degree
Judge Jansonius said.
malice" Defined
Malice was defined by Judge Jan
sonius as "a wish to vex, annoy or in.
jure another person or an intent to
do a wrongful act, established either
by proof or presumption Of law"
"Ma|ice in it's legal sense differs
from the meaning 1t has in common
speech" he said. "The words malice
aforefhought' convey the idea OF
hatred or animosity against the de-
ceased.
I'm a legal sense, the words arc
not used to denote spite or malevo.
lence, hatred or ill-will to be person
killed, not that the slayer killed his
victim in the cool of blood or with q
settled design or generalization.
"In u legal sense, the words NAL
ice aforethought' include genera
malevolent recklessness of the life
and safety Of others. Malice is not
confined to a particular luminosity tx
the person killed but includes an evi
design in general"
There was little sleep in the jur,
room, attending bailiffs indicated
and loud voices could be heard il
argument until the small hours Of
the morning.
The vigor with which the juror!
deliberated during the night was in
dicated by the fact that voices raiset
in argument could be heard almost
100 feet from the jury room despite
the fact that the doors were closed
court attaches said.
The announced aim Of the defense
throughout the trial was to obtair
a verdict Of less than first degree
murder, which carries with it a lift
sentence and no possibility of release
until after the prisoner has servet
half of his normal life expectancy.
With completion of final argu
ment in the trial by States Attorne!
G. f. Kelsch and LANCER at $3.50 Fri
day afternoon, Judge Jansonius or
dered recess until 7:30 and at
O'Clock began reading his charge t.
the jury, turning the case over II
the II men at 1885.
Instructions Amended
The instructions to the jury wer,
amended at the final moment Of
motion Of States Attorney Kelsch
who requested that Judge Jansoniu
add the point that conviction OF
charges Of first degree murder neet
not require that the accused b,
guilty of "wilful, deliberate ant
premeditated" staying, but that viii
full, or deliberate, or premeditatct
action" in a homicide may be bash
for conviction.
There is fine point of law t
be considered" Judge Jansonius tolt
the jury in connection with the allie
CATION of the defense that the police
chief had entered a private dwelling
without warrant for the arrest O.
man on a misdemeanor charge
A'The point of breach of Official
power certainly was not an excuse
for homicide, however," he stated il
his instructions.
Drunkenness No Excuse
On the contention of defense at
torneys that Thiele was ''craz!
drunk" the judge declared drunken
ness neither palliates nor excuses
homicide. 1t is up to the jury to de
termine whether Thiele was to-
drunk to form purpose to kill, h
told the jury.
Where during the trial Defense
Counsel LANCER raised the issue al
to the form of complaint or inf0rma
ton, in that it set forth Thiele sh0
and instantly killed Nels H. Romc
and planned the "wilful, deliberate
apd premcditated death Of some hu
man being" Judge Jansonius tool
the part Of the state in his instruc
tions.
"You will note that the informa
ton does not charge Thiele with in
tent to kill Romer. but human be
ing" he said. "While the law re
QuIrCS tn0C 70 COuVlcC person. o.
first degree murder wilful, DELHI
crate or premeditated attack wa
planned, yet it is sufficient tina
there was a design to kill some hu
man being and then the defendant
is guilty of first degree murder"
LANCER, in his closing plea for tn
defense Friday afternoon, declared
that Romer had no right to enter tn
Thiele home without warrant ant
asked: wasn't Romer guilty o,
contributory negligence when h
knew there was man inside tn,
Thiele home with gun?'
Must Find Malice
"Unless you can find malice il
this case. all my client is guilty of i!
manslaughtcr." he told the jury. H,
brought up the testimony of former
Sheriff Charles Mcdonald as to- tn,
"crazX appearance" of Thiele ant
shouted vehemently, "We'll rest oul
case on the testimony of Charles Nc
Donald"