Year: 1871

w hCtllST WIOup De uOue VI IOl theic'
fore wanton and'reckless conduct result.
ing in an injury to another Is criminal
and often supplies the, place of direct
criminal intent-as If person by reck
less and furious driving unintentionally
run over another and kill him.


Where one doing O lawful act without
any intention of bodily harm, and
using proper precaution, happens to kill
another person, the .homicide'is said to
be by misadventurc, and as the killing
was accidental the homicide is excused.
An accident is an unexpected event,
chance, casualty.


If one wantonly and, recklessly does
an act, the tendency of which is TO do
another bodily injury, he is guilty of
manslaughter if death ensue, although
he may not actually have intended it.
If injury might be expected from the
act it would not be an accident if injury



The degree of care and caution to be
employed depend upon the probability
of dan ger; therefore persons.using arti.
cles or instruments in their naturepecu-
liarly dangerous must not by reckless
and incautious use of them endanger
the lives of others. The care and eau
ton which the law requires is not the
utmost caution which can be used ; it is
sufficient that a reasonable precautlon
be taken-such as from which accidents
do not usually happen. Where the
carelessness is insignificant in degree
the act is not indictable.


Accident may be the lot Of the wisest
and best Of men, and most commonly
they fall amongst nearest friends and
relatives.


Whether the .act which caused the
death of Wesley Eugene Sha der was of
this character is to be determined by
the evidence in the, cause. And perhaps
it will be the most natural and orderly
way in your investigation to. first settle
that question. If you find it. is eXcusa-
BILE homicide under the rules stated, you
will acquit the defendant.


If you are not satisfied that this was
a homicide by misadventure, you will
then ascertain whether the killing was
without malice, and therefore man.
slaughter, or with malice, and therefore
murder, and if murder Of what degree.


BY the common law all murder, with
out regard to qualifying circumstances
which might either aggravate or r.lessen
the oflense, was punished with death,
although the intent of the party max
ing the assault may not have been to
kill, if it appeared that the act was ma
licious.


In this respect the common law was
greatly modified by en- act of Assembly
passed in 1874, and re-enacted 1860. Tht
crimo of murder was thereby divided
into, two degrees, and the duty Of ascer
flaming the degree was committed t.
the jury. The act provides as follows
"All murder which shall be perpetra
ted by means of poison, or by lying il
wait or by any other kind of wilful
deliberate and 'premedtated. killing, OF
which shall be committed in the per
petrntion of or attempt to perpetrate
any arson, rape, robbery or burglary
shall be deemed murder in the first de.
gree, and all other kinds of murder
shall be deemed murder in the seconC
degree; and hejury before whom an!
person indicted for, murder shall b.
tried, shall, il they find such person
guilty Thereof, ascertain in their verdc
whether it be murder in the first o
second degree"


This statute has been the subject G
consideration and judicial construction
in many cases, and it may be stated Il
the uniform conclusion that, except il
cases whore the crime is committed il
the preparation, or attempt to perpe
trate either of the falOnieS mention
the intention 20 kill Is OF the essence G
the offence Of murder in the first degree


The act must not only be wilful, delib
crate and premeditated, but there mus
exist in addition the intent to take life


This general statement of the lav


may not convey to your minds the ful


force and meaning of the terms wilful
deliberate and premeditated, as used il


the statute. For thepurpOse, therefor
of m re fol- explanation, and that yO'


may clearly understand what facts mus


be found before there can be conviC


ton Of capital offence, will be NOR


explicit.


II: an intention to Kill exists it


wiiful; If this intention he accompal


led by such circumstance us evideuc


Il mind fully conscious Of its own pul
pose aud design, it is deliberate; and


sufficient time be afforded to enable tn


mind to frame the design to kill, and [
select the instrument, or to frame til


plan to carry the design into execution
it is premeditated. The law fixes upo


no length Of time as necessary to forl
, the intention to kill, but leaves the e.


istence of fully formed intent as ia
to be determined by the jury, from E.


the facts and circumstances In ey
, dence.n


"rhe law regards, and the jury mu


find, the actual intent to kill, with


much time for deliberaton and Or


meditation as to convince them thl
this purpose is not the immediate of
spring of rashness and impetuou5 ten


per, and that the mind is become full
conscious ofits own design. If there l.
. time to frame in the mind, fully an
. consciously the intention to kill, and
select the weapon or means of deaf
It. and to think and know bcforehan,
{ though the time be short, the use to
f made of it, there is time to delibera
t and premeditate.


o "The proof of the intention to k
!, and of the disposition of mind cons


tuting murder in the first degree, Ii
# on the Commonwealth. But this Pre-
t need not be express or positive. II mi
Y be inferred from the circumstances.
/, from all the facts attending the KILN
# the jury can fully and satisfactorily


fer the existence of the intention to K
n and the maace of heart with which


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