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quences, the malice requisite to murder will be presumed; for it is a presumption of fact that the natural or probable effect of any act deliberately done, is intended by its actor. 8 How far this presumption may be extended to all cases of violent deaths, has been already noticed. t In Ohio, the presumption of killing alone is that of murder in the second degree, u and so also it is held to be the law in Pennsylvania, Tennessee, and Virginia. v And it has been laid down generally, that where there are doubts with the jury, on such a state of facts, into which of two degrees a case falls, they must find the milder. w In Virginia, however, it is said that where the mortal wound is given with a deadly weapon in the slayer's previous possession, there being no evidence of provocation, the case is primâ facie murder in the first degree. x

s See ante, $ 710. See also, as to Com. v. Webster, 5 Cush. 290 ; People general evidence of intent, ante, $ 631; v. Barry, 31 Cal. 357; Clem v. State, Whart. on Hom. 34, 39; on the par- 31 Ind. 480 ; Bradley v. State, Ibid. ticular point given in the text, see U. 492; Holland v. State, 12 Florida, 117; S. r. Cornell, 2 Mason, 91; State v. McAdams v. State, 25 Ark. 405 ; MurSmith, 2 Strobh. 77; Com. v. Drew, 4 phy v. People, 37 III. 447; State v. Mass. 391; Res. v. Bob, 4 Dallas, 146; Hoyt, 13 Minn, 132; State v. Bertrand, Penn. r. Honeyman, Addison, 148 ; 3 Oregon, 61; State v. Decklotts, 19 Penn. o. McFall, Ibid. 257; Penn. o. Iowa, 447; State v. Shippey, 10 Minn. Lewis, Ibid. 282; State v. Zeller, 2 223 ; Jeff v. State, 39 Miss. 593 ; Halsted, 220; State v. Merrill, 2 Dev. Isaacs v. State, 25 Texas, 174; Clarke 269; People v. McLeod, 1 Hill's N. Y. o. State, 55 Ga. 75; State v. Brown, 12 R. 377; State o. Town, Wright, 75; Minn. 538 ; though see Coffee v. State, State v. Irwin, 1 Hayw. 112; State o. 3 Yerger, 283 ; People v. Barry, 31 Cal. Peters, 2 Rice's Dig. 106 ; State v. 357; Smith v. Com. 1 Duvall (Ky.), Torner, Wright, 20; Woodsides 1'. 224. Post, $ 967. As to murder in first State, 2 bloward's Miss. R. 656 ; Dex- degree, see post, $ 1111. The use of a ter r. Spear, 4 Mason, 115; Bivens v. deadly weapon is primâ facie evidence State, 6 Eng. (Ark.) 455 ; Seaborn v. of malice; unless it be used to disable State, 20 Ala. 15; U. S. v. McGlue, 1 an adversary in the very act of making Curtis Ct. Ct. 1; People v. Clark, 3 a murderous and malicious assault, and Selden, 385 ; People v. Sullivan, Ibid. then the presumption of malice is over396; People v. Kirby, 2 Parker C. R. come. Head v. State, 44 Missis. 732. 28; Kilpatrick v. Com. 7 Casey, 198 ; i Ante, $ 708 et seq. Mitchum 0. State, 11 Georgia, 615; u State v. Turner, Wright, 20. See Bird r. State, 14 Georgia, 43; Green ante, $ 710. r. State, 28 Mississippi, 687; Price v. v Hill's case, 2 Gratt. 594; Com. v. State, 36 Missis. 531; U. S. v. Mingo, Drum, 58 Penn. St. 9. See State v. 2 Curtis C. C. 1 ; U. S. v. Armstrong, Taylor, 1 Phil. (N. C.) L. 508 ; Witt v. 2 Curtis C. C. 446 ; State v. Johnson, State, 6 Cold. (Tenn.) 5. 3 Jones Law (N. C.), 226 ; Com. v. w Ante, $ 710. York, 9 Metc. 93, Wilde, J., diss. ; Hill's case, 2 Gratt. 594. See, VOL. IL. - 2

17

An instrument may be deadly or not according to the mode of using it, or the subject on which it is used. y Hence it was held that an oaken staff, near three feet long, of the diameter of an inch and a half or two inches, with which three blows were given to the head of a man while drunk and helpless, shattering the bones of the head, and rupturing the interior vessels of the brain, was a deadly weapon, and a killing by the use of it in that way, was murder. 2

The actual effects produced by the instrument may aid in determining its character, and in showing that the person using it ought to be aware of the danger of thus using it. a

The defendant should be allowed to explain how he happened to have a deadly weapon with him at the time of the homicide. al

Intent an inference of fact, to be drawn from all the evidence in the case. - This point has been already abundantly illustrated. b. When intent is essential to the case of the prosecution, not only must it be thus proved, but it must be proved beyond reasonable doubt. c In a conspicuous prosecution in 1872–3, in New York, this point was fully elaborated. d Judge Boardman, in his charge to the jury, having faltered in recognizing the principle without qualification, the conviction was reversed by the court of appeals on this and other grounds. f Nor is this view distinctive of New York. As has been already shown, it obtains in all cases where intent is necessary to constitute a crime.g also, McDaniel v. State, 8 S. & M. 401; ply an abstract point of speculative State v. Hildreth, 9 Iredell, 429 ; Pier- law. son v. State, 12 Ala. 149.

d People v. Stokes, Sup. Ct. and Ct. y State v. West, 6 Jones Law N. of Appeals, 1873. C. 505.

f Judge Grover, in giving the unanSo also of a rod, with imous opinion of the court of appeal, which a man struck his servant; Grey's said : case, Kel. 64; and a heavy stool, which “It is a maxim in the law, that inanother threw at a child. R. v. Hazel, nocence is presumed until the contrary 1 Leach, 8, 406.

is proved. How is guilt established by a State v. West, 6 Jones Law N. proof only of one of the ingredients esC. 505.

sential to constitute crime? To conal Aaron 1. State, 31 Ga. 167. stitute crime, there must not only be b Ante, $ 711-2, 751.

the act, but also the criminal intention, c R. v. Chapman, 12 Cox C. C. 4, and these must concur, the latter beso far as it departs from this princi- ing equally essential with the former. ple, must be regarded as deciding sim- Actus non reum facit, sed mens, is a

2 lbid.

g Ante, $ 751.

$ 945. Express malice is when one, with a sedate and deliberate mind, and formed design, kills another; which formed design

maxim of the common law. The in- or excusable homicide, consistent with tention may be inferred from the act, such proof. but this, in principle, is an inference of • It was error to instruct the jury that fact to be drawn by the jury, and not the law implied all these facts from an implication of law to be applied by the proof of the killing. The correctthe court. But the question in this ness of this has rarely been questioned case is not what was the rule of the since the enactment of the statute. common law as to the implication of Hence there has been but little said malice from the act, whether such rule by the courts upon the question, but is deduced from authority or princi- what has been said sustains it. People and legal analogies. The question ple v. Clark, 7 N. Y. 393; Fitzgerald arises upon the statute of the state by v. People, 37 N. Y. 418; People v. which homicide is made justifiable or White, 22 Wend. 167; Wilson v. Peoexcusable murder in the first or second ple, 4 Parker, 619. The General Term degree, or manslaughter in one of four were correct in the conclusion that this degrees, determinable by the intention part of the charge was erroneous, and and circumstances of its perpetration. in the further conclusion that, to obUnder the statute, it is obvious that viate the error, it was for the people to mere proof that one has been deprived show that the prisoner was not prejuof life by the act of another, utterly diced by such error. Green v. White, fails to show the class of the homicide 37 N. Y.405; Clark v. Dutcher, 9 Cow. under the statute.

674; People v. Wiley, 3 Hill, 194. “ Section 3, of title 2, of the statute, “ We have examined the entire declares in what cases the homicide, charge to determine whether it does when perpetrated by an individual, so show. We find that the judge corshall be justifiable.

rectly charged the jury as to the facts " Section 2 of title 1, as amended by necessary to constitute the crime of the act of 1872, provides that such murder in the first degree, and, further, killing, unless it be manslaughter, ex- that he correctly instructed them that cusable or justifiable homicide, shall the people must prove all these facts he murder in the first degree in the to authorize the jury to render a verfollowing cases:

dict convicting him of that crime. " First : When perpetrated from a “But how does this cure the error of premeditated design to effect the death the instruction that the law implied of the person killed or of any human all the necessary additional facts from being. It was under this provision the proof of the killing? It was, in that the prosecution sought to convict effect, instructing the jury, that, althe prisoner. To justify such convic- though the people must prove all these tion, it was necessary for the prosecu- facts, yet they had done so by provtion to prove all the facts bringing the ing the killing, and by that the case of case of the prisonter within it. Mere the prosecution was fully and entirely proof of the killing did not, as a legal made out, and that this proof made it implication, show this. It might still the duty of the prisoner to satisfy them be murder in the second degree, man- that it was not murder which the law slaughter in some degree, or justifiable would imply from that proof, thus, in is evidenced by external circumstances discovering that inward intention; as lying in wait, antecedent menaces, former grudges, and concerted schemes to do him some bodily harm.y Nor does general malice constitute a less crime, as with him who kills another in consequence of such a wilful act as shows him to be an enemy to mankind in general; as going deliberately with a horse used to strike, or discharging a gun amongst a multitude of people. z

Malice is where a person “ wilfully does that which he knows will injure another in person or property.”z1

§ 946. Where it appeared that the deceased had threatened the prisoner, about three weeks before, that he would kill him ; that they met in the street on a starlight night, when they could see each other; that the deceased pressed for a fight, but the prisoner retreated for a short distance; that when the deceased overtook him, the prisoner stabbed him with some sharp instrument which caused his death, and at the time of this meeting the deceased had no deadly weapon ; it was held, that in such a case, to mitigate the offence from murder, it must appear from the previous threats and the circumstances attending the rencontre, that the killing was in self-defence, the presumption being that the killing was malicious, a

effect, instructing the jury, that the pass upon the whole case, inferring proof of the killing cast the burden of facts from the proof of other facts, proof upon the prisoner to show that wbich convince their judgment of the it was not murder, but manslaughter truth of the facts inferred, bearing in or justifiable homicide. No such bur- mind that the burden of proof is upon den of proof was by that cast upon the the prosecution as to all the facts neprisoner. Lamb v. C. & A. R. R. Co. cessary to constitute guilt during the 46 N. Y. 271.

entire trial, and that their verdict “ The further instruction to the jury, should be the conscientious expresto the effect that the law required no

sion of their convictions derived from particular length of time between form- all the evidence." See N. Y. Stat. of ing the design to kill and the act by May 29, 1873. which the death was effected, had no y Wharton on Homicide, 38, 39 ; relation to, or bearing upon, the point i Hale, 451. Nor need the menaces in question. The jury may, as a be pointed specifically at the deceased. matter of fact, find the design to kill Hopkins v. Com. 50 Penn. St. 9. from the act by which death was ef- z 1 Hawk. ch. 29, sect. 12; Com. v. fected, and all facts, except that of Drum, 58 Penn. St. 9 ; Herrin v. State, the killing itself, required to constitute 33 Texas, 638. See post, $ 967. murder in the first degree, by proof of z1 Blackburn, J. in R. v. Ward, Law circumstances which convince them of Rep. 1 C. C. 360 ; Holland v. State, the truth of such facts. They are to 12 Florida, 117.

$ 947. Poison. Infection. — Where a man wilfully poisons another, in such a deliberate act the law presumes malice, though no particular enmity can be proved. b And so where one person forcibly exposes another to an infectious disease. 61

The admissibility of antecedent acts of poisoning to prove malice, has been already discussed. 62

Malice in other case8. — So, if a man kill another suddenly, without any, or without a considerable, provocation ;c if he kill an officer of justice in the legal execution of his duty; if, intending to do another felony, he undesignedly kill another man ; in all these cases malice is implied. d

$948. Instantaneous intent enough. — Intent at the moment of striking the blow is sufficient to constitute malice. e

$ 949. Malice once proved presumed to continue. — When the existence of deliberate malice in the slayer is once ascertained,

a Wharton on Homicide, 40 ; State was the premeditation, and if they v. Scott, 4 Iredell, 409.

did not find such premeditation there 1 2 Hale, 455.

could not be a conviction for murder.' bl Castall v. Bambridge, 2 Stra. 854. There is nothing in this inconsistent 1,2 Ante, § 635 c.

with the settled law upon the subject. c People v. M'Leod, 1 Hill, 177 ; In the People v. Clark, 7 N. Y. 385, U. S. r. M'Glue, 1 Curtis C. C. 1; the charge was: 'If the jury believed People v. Clark, 3 Selden, 385. the killing was with the intention to

d People v. Clark, 3 Selden, 385; kill, though that intention was formed Mitchum v. State, 11 Georgia, 615. at the moment of striking the fatal

e State v. Toohey, 2 Rice's Dig. blow, it was murder.' And the justice, 104; U. S. o. Cornell, 2 Mason, 91; in delivering the opinion of the court, Woodsides o. State, 2 Howard's Miss. says : • If there be sufficient deliberaR. 656 ; Dain v. State, 2 Humphreys, tion to form a design to take, and to 437; Coffee v. State, 3 Yerger, 288; put that design into execution by deState v. Lipsey, 3 Dev. 485; People v. stroying life, there is sufficient deliberMoore, 8 Cal. 90; Lanegan v. People, ation to constitute murder, no matter 50 Barbour, 266 ; People v. Clark, 7 N. whether the design be formed at the Y. 385; Com. v. Drum, 58 Penn. St. instant of striking the fatal blow, or 9; McAdams r. State, 25 Ark. 405; whether it be contemplated for months.' Fahnestock v. State, 23 Ind. 231. In This has been the leading case. It People v. Nixon, N. Y., May, 1873, has never been overruled or departed Judge Ingraham said : * The judge from. The words used by the learned charged the jury that the design to justice in the charge in this case are take life may be formed upon the almost the same as those used in the instant of doing the deed of death.' case cited.” But see statute of May He had before told them that there 29, 1873.

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