Year: 1869

based upon reverence for and recognition


Of the supremacy of the law. A denial Of


its superior control and binding obligation


is not only destructive of free government,


but irresistibly reverts man to red-handed
| anarchy, which is next to barbarism, Or to
| that barbarism which makes might right !;


sacrificing the mesk and the helpless to the


rapacity and brutality of the strong.
Having said this much in respect to the
relations and duties of this tribunal,


shall endeavor to lay before you such rules
and principles as should govern your de-
liberations, and which, under the obliga-
ton of my oath, believe incumbent upon
me to give in response to the request Of the
Commonwealth attorney.


To the first point submitted by the Com
monwealth's attorney We instruct, as de-
sired, and say to you that


eff the jury believe from the evidence
in the cause that the gun from which the
leaden bullets were discharged and aimed
at, and actually penetrated, the body of the
deceased, as described in the indictment,
was so sined and discharged by tho pri-
soner at the body and person Of the de-
ceased with the intent, previously formed,
then and there to cause the death Of the
deceased, on deliberation, as charged in
the indictment, then they must find q ver-
dict responsive to the charges as laid in the
Indictment


Asto the second point, which i5 as follows:


eff the jury believe from the evidence
in the cause that the prisoner, from pre-
conceived motives, formed On deliberation,
actually laid in wait and deliberately Sc
creted himself, with the deliberately formed
purpose then and there to shoot, and by 30
shooting, to cause then and there the death
of the deceased on the Oath day of NoVem-
Der, 1868, as charged in the Indictment, for
any supposed or actual provocation which,
from the evidence in the cause, was brought
directly to the knowledge of the prisoner
as early as the 21st day of November,
1868, then they are instructed that sutfi-
cient cooling time had occurred between the
2lst and the 24th day of said month for
all passion to subside, in the eyes of the
law, and they cannot consider the alleged
proYocation in extenuation or mitigation of
the felony as alleged in the indictment"


We say to the jury the reasonable time
for cooling had occurred; but that no spe-
cial time for cooling has been or can be as
certained by absolute rule of law. The
true doctrine upon this subject is that each
case must stand upon its own merits as af-
fected by the circumstances. Both the
questions of what is sufficient cooling
time" and what is "sufficient provoca
tion," are matters of law and not of fact.
Like all other questions of law, however,
they are found practically involved in in
quiries of or concerning facts, and as such
must be passed upon by the jury. The only
positive rule which We can lay down for
your guidance upon this subject is, " That
if the actual furor Of mind does not exist,
or does not impel the arm which intlicts
the fatal blow, there is no excuse from
passion" 1t must be observed here that
both the questions concerning proyocation
and cooling time arise out Of q presumed
state of intense, uncomfortable, and unrea-
sonable passion, which does for the time
inhihit the exercise Of reason and judg-
ment. If no passion of such nature ex-
listed, or if the jury believe from the evi-
dence that sufficient cooling time had oc-
Cured between the 2lst and 9th days of
November, 1868, to allow and enable the
prisoner to judge his motives and action,
then we affirm the other propositions of said
charge as stated by the Commonwealth's
attorney.


The third point presented is that


"If the jury believe from the evidence
in the cause that the alleged proTocation
was brought homo to the knowledge of the
accused, and he, acting on it, not under the
sudden and violent impulse Of the moment,
but upon deliberation and after con5ulta-
tion and advisement, and as a means of
carrying out and perfectiug his designs so
formed, procured the entrance to and occu-
patton of the room from which the gun was
50 discharged, as alleged in the Indictment,
then such procurement, occupation: and use
of the said room is evidence to ascertain
and settle the motive with which said room
was so procured, occupied, ard used, is
affirmed, and given to you as correct and
proper rule upon the subject Of inquiry as
stated"


The fourth point submitted is:


"That if the jury believe from the evi-
dence in the cause that the prisoner de-
liberately formed the intention to take the
life of the deceased, and, as @ sure and
safe means Of carrying into effect his pur-
pose thus deliberately formed, procured
the entrance to and occupation Of the room
from which the gun was discharged and
aimed at the deceased, and being 30 dis
charged and aimed at the deceased by the
prisoner, then such procurement, occupa-
ton, and use of the said room is evidence
of deliberation and lying in wait, and ex-
cludes the legal presumption Of all or any
provocation."


We affirm this proposition also, so far as
it asserts such facts, if believed, to be evil
dence of deliberation, and, if you further
should be satisfied from the evidence in the
cause that the prisoner also did occupy said
room, there awaiting the coming of the de-
ceased for the purpose of killing him, that
such facts, in connection with those stated
in the fourth point, would be legal evidence
of "lying in aocit," and excluding the legal
presumption of heat of blood at the time.
As thus explained only the point is af-
frmed.


Point FIVE is that


"If the jury believe from the evidence
in the cause that the prisoner formed and
deliberately designed to take the life OF
the deceased on the 2lst day Of November,
1868, and watched his opportunity and laid
his plans on deliberation and consultation
until the 24th day of November, 1868, and
then, from room procured for the pur-
pose, secretly, deliberately, and advisedly
discharged the gun, ss alleged in the in
dictment, they must find the prisoner
guilty as charged in the Indictment"


And its proposition is fully affirmed and
committed to you as the Law governing this
Question, under the circumstances stated.
ANY wilful, deliberate, and premeditated
killing is murder, says the ,oordS Of the
law of Virninia and VIC cannot change