State v. Primrose

charging the jury:

Gentlemen of the jury: — Edward Primrose, the prisoner at the bar, is charged in this indictment with murder of the first degree; it being alleged that he did on the seventh day of August, A. D. 1910, kill one August Frisby in Appoquinimink Hundred in this county, by shooting him with a pistol inflicting thereby a mortal wound from which the said Frisby died. It is contended by the defendant that he was shot at by the said Frisby, and that he, the said Primrose, in striving to prevent the said Frisby from shooting a third time, took hold of both of the hands of the said Frisby, and that while so holding the said Frisby, the pistol was discharged, the ball taking effect in the head of the said Frisby and killing him.

Homicide is the killing of one human being by another. Felonious homicide is divided into three classes; murder of the first degree; murder of the second degree and manslaughter. Malice is an essential ingredient of the crime of murder of both degrees. Without malice there can be no murder either of the first or of the second degree. Malice is a condition of the heart. Wherever the fatal act is done deliberately or without adequate cause, the law presumes that it is done with malice and the burden is on the prisoner to show from the evidence or by inference from" the circumstances of the case, that the act was not done with malice.

Murder of the first degree is where the killing was done with express malice aforethought. Express malice aforethought is where one person kills another with a sedate, deliberate mind and formed design, which formed design may be manifested in many ways; as, for instance, by lying in wait for the deceased, or by antecedent menances or threats that disclose a purpose on the part of the prisoner to commit the act charged, or by a former *170grudge, ill-will, spite,hatred,or malevolence towards the deceased, or any other circumstances which disclose the purpose or intention of the accused towards his victim at the time when the crime was committed.

Murder of the second degree is where the killing is done with implied malice. Implied malice is an inference or conclusion of the law from the facts found by the jury. Murder of the second degree is where there was no deliberate mind or formed design to take life, or to perpetrate a crime punishable with death,but where the killing nevertheless was done without justification or excuse, and without provocation, or without sufficient provocation to reduce the offense to manslaughter. And where the circumstances surrounding the case show that the killing was committed under the influence of a wicked or depraved heart, or with cruel and wicked indifference to human life, the law implies malice and makes the offense murder of the second degree.

When the killing is shown to have been done with a deadly weapon, malice is presumed, in the absence of evidence to the contrary, and the burden of showing the contrary is on the accused, for the usual and probable consequences of the act are presumed in law to have been intended by the person using the deadly weapon.

Manslaughter is usually committed where one in a sudden affray, in the heat of blood, or in a transport of passion, without malice, inflicts a mortal wound, without time for reflection or for the passions to cool. It is where one person unlawfully kills another without malice. In order to reduce the crime to manslaughter the provocation must be very great, so great as to produce such a transport of passion as to render the person for the time being deaf to the voice of reason. While murder proceeds from a wicked and depraved heart and is characterized by malice, manslaughter results not from malice, but from unpremeditated and unreflecting passion.

The burden of establishing self-defense rests upon the accused. If the deceased first attacked the accused, even though the attack was of such a character as to create in the mind of the accused, a reasonable belief that he was in danger of death or *171great bodily harm, it was his duty to retreat, if he could safely do so, or to use such other reasonable means as were within his power to avoid killing his assailant. No one may take the life of another, even in self-defense, unless there is no other available means of escape from death or great bodily harm. In ascertaining whether the accused was in danger of injury at the hands of the deceased when he struck the mortal blow; and if in such danger, whether he took the proper precautions to avoid such danger, the jury should consider the facts and circumstances of the case as disclosed by the witnesses.

Where there is conflict in the testimony, it is the duty of the jury to reconcile such conflict if they can. If they cannot, they should accept such testimony as they consider under all the circumstances is most worthy of credit and belief, having of course regard to the ignorance or intelligence of the witnesses, their interest or bias, and the opportunity which they had of observing and knowing the things respecting which they testified.

As regards circumstantial evidence, the law has been laid down in this state as follows:

“Where the evidence relied upon to prove the guilt of the accused is circumstantial, it is essential first, that such circumstances be proved to the satisfaction of the jury beyond a reasonable doubt; second, that such circumstances be in all respects consistent with the theory of the guilt of the accused, and third, that such circumstances be inconsistent with any other reasonable theory than the guilt of the accused . In other words, there should not be a conviction upon circumstantial evidence unless such evidence be sufficient to exclude any reasonable inference or conclusion other than that the accused is guilty of the crime charged.”

The duty is upon the state to prove beyond a reasonable doubt every material ingredient of the crime charged. In every criminal case the accused is presumed to be innocent until his guilt is proven beyond a reasonable doubt. If after carefully and conscientiously considering and weighing all the evidence in the case, you should entertain a reasonable doubt of the guilt of the prisoner, you should give him the benefit of such doubt, and your verdict should be not guilty. But such a doubt must be as the *172word implies “reasonable,” not a mere fanciful, vague or speculative doubt, but such a substantial doubt as fair-minded and conscientious men would entertain under all the facts and circumstances in the case. If upon mature consideration of the evidence, you should not be able to determine how the fatal shot was fired, or by whom it was fired, or if you should not be satisfied from the evidence, beyond a reasonable doubt, that the shot was fired by the prisoner, you should acquit him. If you should find from the evidence that the prisoner without intending to injure him, attempted to disarm Frisby, or attempted to prevent Frisby from injuring him, and in the struggle the pistol was accidentally discharged and killed Frisby, you should acquit the prisoner. And if the jury are satisfied from the evidence that the deceased first attacked the prisoner, and that from the character of such attack, he had reasonable cause to believe, and did believe, that he was in imminent danger of death or great bodily harm, and that he had no reasonable means of avoiding or preventing his death or great bodily harm, other than by shooting his assailant, and that under such circumstances he shot Frisby, it was a justifiable act of self-defense and the prisoner should be acquitted.

The jury are the sole judges of the facts and circumstances of the case as disclosed by witnesses, and they may consider in connection therewith any evidence going to show the contrast in size and physical proportions between the accused and the deceased.

If you are satisfied that the prisoner killed the deceased unlawfully, but without malice, your verdict should be guilty of manslaughter. If you believe the prisoner killed the deceased maliciously, without justification or excuse, and without sufficient provocation to reduce the offense to manslaughter, your verdict should be guilty of murder of the second degree.

If the evidence satisfies you that the prisoner killed the deceased with express malice aforethought, being as heretofore explained to you, with a sedate deliberate mind and formed purpose, then your verdict should be guilty of murder of the first degree.

And finally, if you are not satisfied beyond a reasonable doubt of the guilt of the prisoner of either murder of the first *173degree, murder of the second degree or manslaughter, your verdict should be not guilty.

Verdict, not guilty.