Year: 1879


pOSely, and of deliberate and premeditated
malice, killed John Whattmaugh. The
proof must establish that he killed him
purpoSely; that he killed him of deliberate
and premeditated malice that his death
was caused by the wounds and injuries
inflicted on him by the prisoner, by the
assault and beating charged in the in
diCtment.


lst. The killing must have been done
purpO8eIy' that is, death must have been
intended? The proof must establish
this, How is this purpose to kill to be
proved? A learned Judge of the Su-
preme Court has answered this, as salts
tactorily as it can be answered, in an
early case on trial in that court, (Wright's
Rep 1922.


"The purpose or intent to kill in gem
eral is proved by the circumstances; by
what the party does; the manner of in
flicting the wounds; the instrument used,
and its tendency to destroy life; if palpa-
bly, calculated to take life, the party is
presumed to so intend" l would quail
ify the last sentence Of the learned Judge,
and state in the view Of later cases of
our Supreme Court, that from the cir
cumstances mentioned, jury is warran
ted to presume and find that the party
did so intend or purpose to kill; but the
question is still one for the jury. The
principle is founded ON the natural and
reasonable ground, that every accounta-
BILE human being is presumed and bound
to know the natural consequences of his
own voluntary acts Thus, where a man
strikes at the head of another with
weapon, which in its nature would pro-
duce death, and which accordingly does
produce death, the presumption is natu-
raj and reasonable that he intended the
killing, unless other accompanying cir
cumstances show the absence of intent
or purpose to kill.


In the present case it is claimed by the
State, that the defendant used heavy,
iron, railroad Coupling-pin in inficting
the terrible wounds of which it claims
the deceased died. that it was an imple-
ment of a highly dangerous character if
used as weapon in an assault, and well
calculated to destroy life; and that it was
SO used by the defendant, to strike his
victim with great violence upon the most
vital parts of his person, namely: the
head, base of the brain, and the neck, in
a manner that death must manifestly be
produced thereby; and further, that the
victim on the same day died of the iniu-
ries received therefrom. If this be true.
If the facts so claimed are established by
the proof, the jury are well warranted to
presume therefrom that the accused did
intend and purpose to kill the deceased.
In this connection l may add, as reques-
ted by the defendant; though it be shown
the killing was malicious, yet from that
fact alone, purpose to kill is not neces-
sarily to be inferred by the jury; but
must depend upon all the facts regarding
the killing.


Next, the killing must have been of
deliberate and premeditated malice.
What is deliberate and premeditated
malice, and how is that to be proved?
One Of the greatest Judges that ever sat
on the Supreme Court Bench of our State,
has defined what is understood by NAL
ice. He says:


Malice, in law, is wilfully formed
design to do another an unlawful injury;
whether such design be prompted by de-
liberate hatred or revenge, or by the
hope Of gain, or springs from the wan
tonness and depravity of heart regard
less of social duty, and fatally bent on
mischief"


This, then, is what is understood by
malice. What is deliberate and premed-
itated malice our Supreme Court has, in
a late case, further explained and declar-
ed. 1t held in that case, that:


ITO constitute deliberate and premed-
itated malice, the intention to do the
injury must have been deliberated upon,
and the design to do it formed before the
act was done; though it is not required
that either should have been for any con-
\ siderable time before. This supposes
that the party, by reflection, understood
what he was about to do, and intended
to do it in order to do harm. If the per-
son has actually formed the purpose ma
liciously to kill, and deliberated and
premeditated upon it before he performs
| the act, he is guilty of murder in the first
degree, however short the time may
have been between the purpose and its
execution. tits not time of deliberation
and premeditation that is requisite, but
simply the actual existence of the pur-
pose, malice, deliberation and premedi-
tation; and it matters not how short the
time, if the party has actually turned it
over in his mind, weighed and deibera-
ted upon it," ..,


This, then, is understood to be delib-
Grated and premeditated malice, some
times called malice prepense or malice
aforethought. AS to the proof of it, l
may begin by calling the attention of
the jury to the we'll established principle
of law, that if the fact of killing be pro-
we'd; the facts and circumstances under
which the killing was done will deter
mine whether the killing was malicious,
| justifable or excusable. Deliberation
and premeditation are often, if not gem
orally, established by circumstantial evil
dence. Thus it may be shown that prep
arations were made by the accused for
the purpose of killing, such as the pro-
curing of the instrument with which the
killing was afterwards done; selecting of
the place where to carry it out; forming
the plan or plot how to be effected, and
the end, design or purpose for which it
was to be done.


In the present case it is claimed by
the State that the prisoner and one Geo.
Mann, his confederate, formed design
together to kill John Whattmaugh for
the purpose of robbing him; that they
procured secretly, for the purpose of car
rying out this plan, an iron, railroad
coupling-pin; that they carried it con-
cealed from observation to a secluded
place, to which they and the deceased re-
paired, ostensibly for the purpose of par
taking of frugal breakfast. consisting OF
crackers and cheese provided by the
bounty of the victim for the purpose;
and that after arriving in this secluded
place, they killed him with this dread
instrument and robbed him of his mon
ey, clothes and effects, stripping even all