s 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 prima 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 Ill. 447; State v. Mass. 391; Res. v. Bob, 4 Dallas, 146; Hoyt, 13 Minn. 132; State v. Bertrand, Penn.. Honeyman, Addison, 148; 3 Oregon, 61; State v. Decklotts, 19 Penn. o. McFall, Ibid. 257; Penn. v. Iowa, 447; State v. Shippey, 10 Minn. Lewis, lbid. 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. v. State, 55 Ga. 75; State v. Brown, 12 R. 377; State v. Town, Wright, 75; Minn. 538; though see Coffee v. State, State v. Irwin, 1 Hayw. 112; State v. 3 Yerger, 283; People v. Barry, 31 Cal. Peters, 2 Rice's Dig. 106; State v. 357; Smith v. Com. 1 Duvall (Ky.), Turner, Wright, 20; Woodsides r. 224. Post, § 967. As to murder in first State, 2 Howard'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 ; t Ante, § 708 et seq. Mitchum v. State, 11 Georgia, 615; Bird v. State, 14 Georgia, 43; Green e. State, 28 Mississippi, 687; Price v. State, 36 Missis. 531; U. S. v. Mingo, 2 Curtis C. C. 1; U. S. v. Armstrong, 2 Curtis C. C. 446; State v. Johnson, 3 Jones Law (N. C.), 226; Com. v. York, 9 Metc. 93, Wilde, J., diss.; VOL. II.-2 u State v. Turner, Wright, 20. See ante, § 710. v Hill's case, 2 Gratt. 594; Com. v. Drum, 58 Penn. St. 9. See State v. Taylor, 1 Phil. (N. C.) L. 508; Witt v. State, 6 Cold. (Tenn.) 5. w Ante, § 710. x Hill's case, 2 Gratt. 594. See, 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. z 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. a1 Intent an inference of fact, to be drawn from all the evidence in the case. This point has been already abundantly illustrated. 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 ply an abstract point of speculative law. also, McDaniel v. State, 8 S. & M. 401; State v. Hildreth, 9 Iredell, 429; Pierson 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. z Ibid. So also of a rod, with which a man struck his servant; Grey's case, Kel. 64; and a heavy stool, which another threw at a child. R. v. Hazel, 1 Leach, 8, 406. f Judge Grover, in giving the unanimous opinion of the court of appeal, said: "It is a maxim in the law, that innocence is presumed until the contrary is proved. How is guilt established by a State v. West, 6 Jones Law N. proof only of one of the ingredients esC. 505. al Aaron v. State, 31 Ga. 167. b Ante, § 711-2, 751. c R. v. Chapman, 12 Cox C. C. 4, so far as it departs from this principle, must be regarded as deciding sim sential to constitute crime? To constitute crime, there must not only be the act, but also the criminal intention, and these must concur, the latter being equally essential with the former. Actus non reum facit, sed mens, is a 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 intention may be inferred from the act, but this, in principle, is an inference of fact to be drawn by the jury, and not an implication of law to be applied by the court. But the question in this case is not what was the rule of the common law as to the implication of malice from the act, whether such rule is deduced from authority or principle and legal analogies. The question arises upon the statute of the state by which homicide is made justifiable or excusable murder in the first or second degree, or manslaughter in one of four degrees, determinable by the intention and circumstances of its perpetration. Under the statute, it is obvious that mere proof that one has been deprived of life by the act of another, utterly fails to show the class of the homicide under the statute. "Section 3, of title 2, of the statute, declares in what cases the homicide, when perpetrated by an individual, shall be justifiable. "Section 2 of title 1, as amended by the act of 1872, provides that such killing, unless it be manslaughter, excusable or justifiable homicide, shall be murder in the first degree in the following cases: "First: When perpetrated from a premeditated design to effect the death of the person killed or of any human being. It was under this provision that the prosecution sought to convict the prisoner. To justify such conviction, it was necessary for the prosecution to prove all the facts bringing the case of the prisoner within it. Mere proof of the killing did not, as a legal implication, show this. It might still be murder in the second degree, manslaughter in some degree, or justifiable or excusable homicide, consistent with such proof. "It was error to instruct the jury that the law implied all these facts from the proof of the killing. The correctness of this has rarely been questioned since the enactment of the statute. Hence there has been but little said by the courts upon the question, but what has been said sustains it. People v. Clark, 7 N. Y. 393; Fitzgerald v. People, 37 N. Y. 418; People v. White, 22 Wend. 167; Wilson v. People, 4 Parker, 619. The General Term were correct in the conclusion that this part of the charge was erroneous, and in the further conclusion that, to obviate the error, it was for the people to show that the prisoner was not prejudiced by such error. Green v. White, 37 N. Y. 405; Clark v. Dutcher, 9 Cow. 674; People v. Wiley, 3 Hill, 194. "We have examined the entire charge to determine whether it does so show. We find that the judge correctly charged the jury as to the facts necessary to constitute the crime of murder in the first degree, and, further, that he correctly instructed them that the people must prove all these facts to authorize the jury to render a verdiet convicting him of that crime. "But how does this cure the error of the instruction that the law implied all the necessary additional facts from the proof of the killing? It was, in effect, instructing the jury, that, although the people must prove all these facts, yet they had done so by proving the killing, and by that the case of the prosecution was fully and entirely made out, and that this proof made it the duty of the prisoner to satisfy them that it was not murder which the law 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, effect, instructing the jury, that the proof of the killing cast the burden of proof upon the prisoner to show that it was not murder, but manslaughter or justifiable homicide. No such burden of proof was by that cast upon the prisoner. Lamb v. C. & A. R. R. Co. 46 N. Y. 271. "The further instruction to the jury, to the effect that the law required no particular length of time between forming the design to kill and the act by which the death was effected, had no relation to, or bearing upon, the point in question. The jury may, as a matter of fact, find the design to kill from the act by which death was effected, and all facts, except that of the killing itself, required to constitute murder in the first degree, by proof of circumstances which convince them of the truth of such facts. They are to pass upon the whole case, inferring facts from the proof of other facts, which convince their judgment of the truth of the facts inferred, bearing in mind that the burden of proof is upon the prosecution as to all the facts necessary to constitute guilt during the entire trial, and that their verdict should be the conscientious expression of their convictions derived from all the evidence." See N. Y. Stat. of May 29, 1873. y Wharton on Homicide, 38, 39; 1 Hale, 451. Nor need the menaces be pointed specifically at the deceased. Hopkins v. Com. 50 Penn. St. 9. ≈ 1 Hawk. ch. 29, sect. 12; Com. v. Drum, 58 Penn. St. 9; Herrin v. State, 33 Texas, 638. See post, § 967. 21 Blackburn, J. in R. v. Ward, Law Rep. C. C. 360; Holland v. State, 12 Florida, 117. that the killing was in self-defence, the presumption being that the killing was malicious. a § 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. b1 The admissibility of antecedent acts of poisoning to prove malice, has been already discussed. b2 Malice in other cases. So, if a man kill another suddenly, without any, or without a considerable, provocation; e 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 v. Scott, 4 Iredell, 409. b 2 Hale, 455. -- was the premeditation, and if they did not find such premeditation there could not be a conviction for murder.' bi Castall v. Bambridge, 2 Stra. 854. There is nothing in this inconsistent b2 Ante, § 635 c. c People v. M'Leod, 1 Hill, 177; U. S. v. M'Glue, 1 Curtis C. C. 1; People v. Clark, 3 Selden, 385. d People v. Clark, 3 Selden, 385; Mitchum v. State, 11 Georgia, 615. e State v. Toohey, 2 Rice's Dig. 104; U. S. v. Cornell, 2 Mason, 91; Woodsides v. State, 2 Howard's Miss. R. 656; Dain v. State, 2 Humphreys, 437; Coffee v. State, 3 Yerger, 288; State v. Lipsey, 3 Dev. 485; People v. Moore, 8 Cal. 90; Lanegan v. People, 50 Barbour, 266; People v. Clark, 7 N. Y. 385; Com. v. Drum, 58 Penn. St. 9; McAdams v. State, 25 Ark. 405; Fahnestock v. State, 23 Ind. 231. In People v. Nixon, N. Y., May, 1873, Judge Ingraham said: "The judge charged the jury that the design to take life may be formed upon the instant of doing the deed of death.' He had before told them that there with the settled law upon the subject. In the People v. Clark, 7 N. Y. 385, the charge was: If the jury believed the killing was with the intention to kill, though that intention was formed at the moment of striking the fatal blow, it was murder.' And the justice, in delivering the opinion of the court, says: If there be sufficient deliberation to form a design to take, and to put that design into execution by destroying life, there is sufficient deliberation to constitute murder, no matter whether the design be formed at the instant of striking the fatal blow, or whether it be contemplated for months.' This has been the leading case. It has never been overruled or departed from. The words used by the learned justice in the charge in this case are almost the same as those used in the case cited." But see statute of May 29, 1873. |